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Legal Eye

May 31, 2008

Politics of modalities


May 31, 2008

The writer is a lawyer based in Islamabad. He is a Rhodes scholar and has an LL.M from Harvard Law School

We can choose to be conservative or liberal, leftists or right-leaning, professionals or laymen, civilians or soldiers, but we must be constitutionalists. The theory of trickledown effect might have remained unsubstantiated in the realm of economics, but violation of the Constitution by the rulers has certainly depraved the rule of law in Pakistan at all levels. And the nightmare of constitutional deviations will not end until one who has wronged the Constitution is brought to justice. This is no novel argument, but one over which all the criminal justice systems of the world are founded. When someone murders another human being, we don't suspend accountability till we have reformed the system and the society that breeds violence. We hold an individual responsible for his personal wrongs and simultaneously try to plug the loopholes in the system. Strange logic, then, that when the fundamental law of our land gets repeatedly mutilated the ruling political elite huddles together to find ways to offer the perpetrator an honourable exit.

Is there anything honourable about the manner in which General Musharraf subverted the Constitution, molested the democratic institutions of the state, poked a gaping hole in our justice system, and tried to snuff out the hope and spirit of this nation? He might be a good son and a loving father, a loyal friend and someone who meant well for the country in his own warped way. But none of that is relevant. What is relevant is that the general annexed state authority unconstitutionally, abused the office of army chief and president, exacerbated the civil-military imbalance in the country (which has been the bane of our democracy), caused immense harm to our political institutions, political processes and political culture and his legacy is a state where rule of men trump the rule of law. In a nutshell, the general

broke the law and he should be held accountable, just like any other citizen of the state. And such demand for accountability should not be seen as a desire born out of anger to settle scores.

We all agree that subverting the Constitution is a felony under Article 6. And in any civilised country where all men are equal under law, a felon must be brought to justice. By offering Gen Ayub and Yahya safe passages, this country made a mistake that has come to haunt us twice since. And just because we settled for compromises in the past when we should have insisted on upholding our collective rights and sought justice as mandated by the Constitution doesn't mean we must be held hostage by ignoble precedents. The miracle of the Musharraf regime – evidenced by the vigorous lawyers' and civil society movement – is that the recklessness of an illegitimate ruler has instilled a renewed spirit in this nation to stand up and fight for its soul and its survival. The rule of law movement is not seeking blood – only restitution in lieu of the wrongs done and accountability of the wrongdoers as a deterrent for future usurpers.

We have emerged as a society that largely coheres over the idea of upholding the Constitution and rule of law, and strengthening an independent judiciary that can protect and defend the Constitution. The problem is that our elected PPP government is refusing to give effect to such an unmistakable societal consensus. This refusal seems to be rooted in some false assumptions made by the PPP leadership.

First, it has been argued that the general cannot be removed or the judges restored (which is considered by many as synonymous with his immediate removal without impeachment) because the Americans still back him. Unfortunately in Pakistan we have a tendency to treat America as a monolith. The US, like any other country, comprises political forces and interest groups that have conforming as well as divergent interests. In the aftermath of 9/11 there did emerge in the US a conforming consensus over the war on terror and its relationship with Pakistan has been mediated by its interests and concerns vis-à-vis this war. The Bush Administration found a willing partner in the general and hence their close relationship. But such relationships and their longevity is informed by state interests and not personal loyalties.

Thus citing America's continued support for the general as a reason to keep him in office is either a deliberate attempt to forestall his removal or based on a fundamental misunderstanding of the US policymaking process. The US is one country that has perfected the Machiavellian approach to diplomacy. They liked a conservative Zia in the 1980's and a liberal Musharraf post-9/11, and could grow equally fond of Zardari or Sharif, so long as the governments headed by these gentlemen do not threaten US interests. Democracy in Pakistan might seem inconvenient in the midst of this war, but the US policymaking machine will get used to it. And if the US democracy deserves credit for one thing, it is the inherent ability to systematically change policy every four years with the swearing in of a new administration.

This is why the argument that "America will not allow Musharraf to be removed before presidential elections" sounds ludicrous. After all, whose interests in the US will be affected if Musharraf is shown the door when he is no longer in charge of Pakistan's policy on the war on terror? Even otherwise, the Bush administration is now in its lame-duck phase and the fortunes of John McCain, the Republican candidate, are in any event not tied to Musharraf's future.

This is not to suggest that US Administration's desire on the issue of Musharraf's future should be relevant for our purposes. But to the extent that the PPP leadership finds itself beholden to the US, it needs to understand that the dynamics of America's politics (especially in an election year) are such that no one will really bemoan Musharraf's exit. And as a general matter, so long as the PPP continues to solicit American advice on all issues, it will keep getting a lengthy wish-list. Once it starts to behave like the government of a sovereign state, the US will also prioritise its interests and stop breathing down Pakistan's neck on peripheral matters.

The second flawed assumption of the PPP's leadership is that Musharraf has the support of the army and the establishment and any attempt to remove him could lead to another martial law. If there was ever a time in the country's history when an army chief gave unambiguous signals that the army would stick to its legally mandated role and not intervene in politics, it is now. Whether this is due to the army's need to disassociate itself from the general and recoup, to protect and preserve its institutional and corporate interests, or a reflection of the incumbent chief's definition of professionalism, is irrelevant for this debate. The bottom line is that the army has renounced political adventurism for the moment, and raising the bogey of an imaginary martial law is merely an excuse of the ruling politicos to continue to play ball with Musharraf. And with the army aside, what is the establishment but Musharraf and his cronies in various state institutions and agencies?

The demoralised PPP loyalists and supporters got a morale boost last week when Asif Zardari called Musharraf a "relic of the past" and heated up rhetoric against the Presidency. Yet the PPP leadership remains as ambivalent about the future of the Presidency as it is about the restoration of the judges: all words and no action. The argument that while the PPP and PML-N disagree over modalities, there is no difference between the allies in principle sounds naïve. First, if it were true that the PPP didn't wish to lock horns with the general by initiating impeachment, for he might go postal and use the "nuclear option," the best safeguard against the abuse of Article 58 (2)(b) would have been immediate restoration of the Nov 3 judiciary. And, second, even if "fixing the system" to serve posterity and readjusting the balance of power between the prime minister and the president is the PPP's paramount concern, the general remains the biggest obstacle in the way.

The PPP has opted for the constitutional package route for reform, even though it is obvious that without getting the general's cohorts in the Senate on board there is no possibility of amending the Constitution. On the contrary, the PPP and its allies have the requisite two-thirds majority in a joint parliamentary session to impeach the president. And with Musharraf gone, there would be no hindrance in the way of revamping the Constitution to rid it of the various distortions inked in by dictators over the decades. Such approach would also allow the parliament to debate the constitutional package at length without the urgency to produce immediate results, such as restoring judges or creating a neutered presidency.

It is either terrible advice or a well-conceived plan to sabotage the coalition government's stated objectives of restoring the judges and bidding farewell to the Musharraf era that could explain the PPP's choice of impossible modalities to pursue worthy goals.

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