By Anees Jillani
Son of an elderly man recently was killed. The father, while accepting condolences, loudly thanked God. When people enquired the reason for his gratitude, he remarked that God had been kind as at least the eyes of his son were not hurt during the brutal killing. Our reaction in Pakistan is fast approaching this state of affairs: the writ of the Government is eroding, and almost everybody perhaps for the first time is seriously worried about the survival of the State. The worst may happen but the consolation to all will be that at least we had a democratically elected peoples’ government at the helm of affairs at the time.
Many say that civilian rule in Pakistan is like a `commercial break’ in the country’s polity between two military regimes. General Musharraf appeared benevolent when compared with his predecessor military ruler. He enjoyed good-will during his initial days, but his decision to rule this country indefinitely resulted in the inevitable loss of public support. A stage was reached, which incidentally happens almost invariably during all military tenures in Pakistan’s history that all the political parties united to oppose any future military take-overs.
One hoped that all concerned, whether the politicians, bureaucrats, or the armed forces, had learnt their lesson, and would surprise the people by ruling efficiently, honestly, and in a transparent fashion. The result, however, is for everybody to see. The country is economically in a mess, with hardly any aspect to cheer about. The load-shedding is unbearable, and going to become more so once it gets hotter; the rumors about commissions, acquisitions, and dishonest practices abound; and the almost daily terrorist occurrences in some part of the country is the icing on the cake. We have nothing to cheer about, except an unlimited dose of rhetoric, which the TV news channels thrust upon the nation on a 24/7 basis.
Is there a solution to our problems, or is it a totally hopeless situation? When the Interior Minister was asked if he would seek foreign support to investigate the involvement of Pakistani terrorists in the Mumbai attacks, he said that our investigators and police are no less than any other. He lost his temper when he was asked the next natural question: why then was his government spending millions of dollars to get foreign experts to investigate Benazir’s assassination. After the recent April 4 attack on a Frontier Constabulary check-post in Islamabad, the same Advisor stated that our forces were untrained, and measures will be taken to train them. I hope that I am not the only one confused here after these utterances.
The Mujahideen have been in existence since 1980 when we launched our Jihad against the Soviets. Some of them became Taliban by the mid nineties, and took control of Kabul, with Pakistan’s active support. We were one of the three states in the whole world who recognized them as legitimate rulers. It is a different matter that we lost no time in handing-over the Taliban Ambassador to Islamabad to the Americans soon after the latter’s attack on Kabul, which is something unheard of anywhere.
The Afghan Government led by Karzai has been blaming Pakistan for a long time for most of the terrorist activities in its country; we of course denied that, until we were made to believe this by the repeated visits of the US Under and Deputy Secretary of States for South Asia. We then decided to control these `rogue elements’ based in our tribal areas whom we classified as foreigners. The nightmare started and continues till to date.
Emboldened by the successes of the Taliban based in the tribal areas, the religious forces of the Swat Valley, who had been lying dormant since their disastrous adventure to fight the Americans in Afghanistan in 2001 also started showing their muscle. As if the confusion was not good enough, the `freedom fighters’ fighting the Indian occupation of Kashmir based in Pakistan also got angry after the Musharraf Government decided to rein them, following the Indian Parliament attack. The sectarian forces led by Lashkare Jhangvi, and based God knows where in Pakistan, have never been under anyone’s control.
All of the above appears complicated but is not uncontrollable if the will to fight the above elements is present amongst our rulers, including our armed forces. One needs a vision, coupled with a strategy. What instead we are constantly experiencing is simple drama-bazee: In-camera session of the Parliament to discuss it; one enquiry after another into the terrorist incidents, and special sessions called by the President and the Prime Minister to discuss security issues.
There is no way that our armed forces cannot defeat the Taliban: the number is not so huge, and they definitely are not as well-equipped as our military. However, they can only be fought once we start to fight. A few days of fighting is followed by negotiations, and peace deals, which eventually break-down, and then a little bit of more fighting.
No steps have so far been taken to control the supply of arms to these militant forces. Pakistan is now one of the few countries in the world where arms are being manufactured openly without any licensing procedures, and sold openly, without the customers in the tribal areas bothering to acquire an arms license.
No one has ever questioned as to why we need the tribal areas in the first place. This is a legacy of the British, and there is no justification for having such no-mans land in our country, which are unprecedented throughout the world. How can the people of the tribal areas be brought into the main stream, until and unless we give them the same rights and privileges as everybody else in the country? They are still not governed by the laws of Pakistan, and instead are subject to barbaric Frontier Crimes Regulations which entitle political agents, who invariably are corrupt due to the nature of their job and presence of a huge drug, arms and other sorts of smuggling all around them, to even detain a few months old baby for decades under the doctrine of collective punishment.
The Government should initiate legal reforms in all the tribal areas of the country; abolish the status of the provincially administered tribal areas; control the supply of arms to the militants; clamp down on the drug smugglers and other smugglers; fence the Pak-Afghan border to manage the constant trafficking of militants on both sides of the border; and draw a line beyond which the Government cannot negotiate. It all sounds so easy, and simple. The problem is who is going to do this?
• The author is an advocate of the Supreme Court.
• aj@jillani.org
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LFP Condemns the Murder of NGO Workers
The Chairman of LFP – Liberal Forum Pakistan, Mr Anees Jillani, has welcomed the statement of the UN Secretary-General Ban Ki-Moon, branding as ‘unacceptable’ the flogging of a teenage girl by Taliban militants in Swat, and his calling for upholding human rights, whatever local practices dictated.
The LFP Chairman has thanked the Chief Justice of the Supreme Court for looking into the matter, and requested him not to leave it until the girl is produced in the Court. He said that the chances of the video being fake are slim, and the question regarding the date of flogging is meaningless, if the incident had actually taken place. He expressed his surprise that the State authorities are unable to trace the unfortunate girl, despite a lapse of so many days.
The LFP Chairman also criticized the murder of three women NGO workers, belonging to Rise International which works in the education sector in collaboration with the government and with the support of the USAID. The NGO workers had been meeting parents to persuade them to enroll their children, especially daughters, in schools.
The victims may have been murdered by militants whose might is growing by the day in the region. Given the militants’ aversion to NGOs, they are the prime suspects. In fact, early this year, they had attacked the workers of another NGO and killed them in the same area. The police, and the Provincial State authorities are trying to give it as a personal vendetta slant. Regardless of the nature, the incident goes to show the state of lawlessness in the country, and the erosion of the writ of the State. The militants are clearly trying to impose their control in areas where they have a presence. Their methods are diametrically opposite to those of the civil society, as the militants seeks to drive terror in the hearts of the citizens to break their resistance. Quite clearly, the terrorists are gaining the upper hand. In this no-win situation it is the people who are the worst sufferers.
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The Power of Two `As’
By Anees Jillani, Chairman LFP
The lame duck Prime Minister of Pakistan, Yousaf Raza Gilani on March 16th morning announced the reinstatement the deposed Chief Justice of the Supreme Court effective March 22. The current Chief Justice, Mr Abdul Hameed Dogar, is retiring a day earlier. The details about the reinstatement have yet to follow, but it appears that all the Judges of the superior courts who had refused to take oath on the grounds that they remained in office, despite suspension of the Constitution by President Musharraf.
Almost everybody in Pakistan is delighted with the outcome of this long-drawn struggle to reinstate Mr Chaudhry, with the exception of a few. The lawyers achieved what they had been struggling for since the imposition of the PCO (Provisional Constitutional Order) on November 3, 2007; the business and trading community is heaving a sigh of relief; the police who reluctantly had to control the demonstrators; and the down-trodden, including relatives of hundreds of missing persons apparently picked up by the intelligence agencies with no trace in sight, who feel that all their problems, ranging from hanging Musharraf to finding the missing to ending unemployment and inflation, are finally going to be solved.
We all know that not much may change for the better, but it is a different story. The people of this unfortunate country desperately need a break, and deserve a day of happiness. Mr Ifthikar Chaudhry is a Punjabi speaking judge who is settled in Balochistan. He was brought to the Supreme Court by General Musharraf, and later elevated to the post of Chief Justice. He was part of the bench that validated the suspension of the Constitution, and its replacement by the PCO. The Supreme Court was boycotted by all the opposition forces, including a section of lawyers, for taking a pro-Musharraf stance for a number of years, until Mr Chaudhry started taking suo motu actions on various issues, most notably cases of missing persons, and misuse of farming plots for residential purposes by Generals, including Musharraf, and the former PM, Shaukat Aziz. He suddenly became a hero when he cancelled the privatization of the Steel Mills which is the biggest state-owned concern.
On March 9, 2007, President Musharraf suspended him which he was not entitled to do under the Constitution as a judge can only be suspended or removed by the Supreme Judicial Council. This was not the first time in Pakistan’s history that a judge had been removed by a military ruler. However, Mr Chaudhry became a hero because he had earlier refused to resign despite being pressurized by President Musharraf and PM Shaukat Aziz, and Director Generals of ISI, and Military Intelligence in a joint meeting at Musharraf’s Army House. The rest is history.
Mr Chaudhry challenged the proceedings of the Supreme Judicial Council, and he was restored by the full bench of the Court in a unanimous judgment. No one knows for sure till to date as to why was he removed by Musharraf in the first place. Mr Chaudhry again remained the CJ until November 3, but was dropped once again by Musharraf by replacing the Constitution by a PCO, and not permitting some judges to take oath, and many others, including the CJ refusing to take oath under the PCO.
Both Benazir Bhutto, and Nawaz Sharif, once formidable political foes, had become allies while living in exile, and signed a Charter of Democracy in 2006. Nawaz Sharif was distressed when Benazir negotiated her return behind his back, but tolerated it. The bonhomie, however, was short-lived as Benazir was assassinated; President Zardari became her successor, and agreed in writing with Nawaz Sharif to restore the Chief Justice once his Party came to power.
Apparently, however, Zardari made a few deals himself, including with Musharraf, and the current CJ Dogar, and refused to lift the November 2007 PCO and thus reinstate the judges. Instead, he invited all the deposed judges, including Mr Chaudhry, to take a fresh oath, and refused to replace Mr Dogar by Mr Chaudhry. This impasse led to Nawaz Sharif withdrawing from the federal cabinet, and ultimately to the imposition of Governor’s rule in the Punjab.
Mr Nawaz Sharif subsequently took a strong stand, and decided to opt for street agitation, culminating in the March 15 Long March that he led after violating his house arrest in Lahore. The Gilani Government agreed to restore Mr Chaudhry as the CJ within 12 hours of this Long March. However, the Government succumbing to the pressure would not have been feasible, without the constant intervention of the Chief of Army Staff, General Ashfaq Kiani, and the American Ambassador to Islamabad. Also, Hillary Clinton telephoned both Nawaz Sharif, and President Zardari, and the Special Envoy for Pakistan, Mr Richard Holbrooke, was in constant touch with all the concerned parties.
The restoration of Mr Chaudhry as the CJ may not settle the legal imbroglio in totality as lots of issues remain to be resolved. The PCO was challenged in the Supreme Court, but it was upheld. This is now an anomalous situation where Courts are functioning all over the country, but not being recognized by a sizeable section of the legal community, some of the political parties mainly led by PML-n, and of course the deposed judges.
As if the above confusion was not good enough, a seven member full bench of the pre-Supreme Court passed an order on November 3 which restrained the superior court judges from taking oath under the PCO; and held that “any new appointment of judges of superior judiciary would be unlawful and without jurisdiction.” The post-PCO Supreme Court, while hearing a petition against this Order, held it to be invalid, as it was passed after the promulgation of the Emergency Proclamation, the PCO and the Oath of Office (Judges) Order. This latter decision of the Supreme Court remains in force till to date but it remains to be seen as to which Supreme Court judgment will succeed after Mr Ifthikar Chaudhry again becomes the Chief Justice?
If one accepts the pre-PCO Supreme Court Order, then all new appointments in the superior judiciary since November 2007 are unlawful and without jurisdiction. If this is the case, then what will be the outcome of the decisions taken by these “unconstitutional courts” during the past 17 months; and the fate of the post-PCO Supreme Court Order that held this very pre-PCO Court Order to be invalid, and other major pro-Musharraf Court decisions, including the decision that upheld the Emergency Proclamation, the PCO and the Judges Oath Order?
Like in a banana republic, the PCO gave President Musharraf the power to amend the Constitution simply through the issuance of an executive order. Musharraf carried out several amendments, including the Constitution (Amendment) Order 2007 which resulted in establishment of a High Court for the Islamabad Capital Territory. This Court is totally a product of the PCO. If the PCO is considered to be void ab initio (void from the beginning), then the Islamabad High Court is unconstitutional, including all decisions taken by it.
To make matters worst, the PPP Government like a bull in a china shop has hastily been appointing judges in all the High Courts. These appointment were made in deviation from the mechanism agreed to in the Charter of Democracy signed between Benazir and Nawaz Sharif in London in May 2006.
A heavy responsibility now lies on CJ Mr Ifthikar Chaudhry’s shoulders. The people of Pakistan, particularly the down-trodden, are expecting him to perform miracles. The political forces are look forward to, action being taken against Musharraf for abrogating the Constitution, and invalidating the National Reconciliation Ordinance; the relatives of the missing persons anticipate his calling the intelligence chiefs to the Court to find their loved ones; and the common man wants him to find a job, and eliminate inflation. The CJ is faced with the tricky part to find a solution to the imbroglio left by General Musharraf, and partly a product of the present PPP Government as it has now been in power for more than a year, and somehow also deliver a little bit to the masses. His restoration was made possible through the intervention of the two `As’: Army and America. He probably now needs the help of the third `A’ who is watching in total amazement from the sky to resolve this imbroglio!
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LFP 