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Opinion

Legal Eye

June 21, 2008

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The morning after

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

In order to gauge the success of the long march, a distinction needs to be drawn between the goals of the march and the aspirations of its participants and supporters. We witnessed a historic march on a non-partisan issue that (even conservatively speaking) mobilised at least a million people around the country, a quarter of which made it to Islamabad. The moral voice of these peaceful marchers in support of justice, rule of law and an independent judiciary reverberated across Pakistan and sent an unmistakable message to our representatives in the Parliament. It lay to rest the lame argument that the issue of restoration no longer resonates with the average citizen struggling against food insecurity, the fuel and energy crises and abject poverty. It also projected Pakistan as a moderate, peace-loving and law-abiding nation where people from all walks of life could stand in unison to exercise their right to protest and manifest their passion for justice without venting their anger.

What the march did not accomplish was immediate restoration of the judges. The expectations of participants and supporters ran high and they desired immediate results. The enigmatic passion that convinced a million strong to stand up and be counted during Pakistan's blistering summer for a cause that promised no partisan or direct personal benefit to the marchers also explains the disconnect between the rational goals of the long march and the exaggerated expectations of its participants. Could the long march have led to immediate restoration? No. Did the supporters and participants wish it to? Yes. And this gulf between the doable and the desirable has generated resentment, as well as the urge to find fault with those leading the march, to explain why the popular aspiration of immediate restoration went unrealised.

Had the march culminated into a "dharna,"

would that really bridge the gulf between the doable and the desirable? In defence of the leaders of the long march, they could have done little else that would change the substantive outcome of the march. First, as a matter of principle, the goal of the march was not to threaten or arm-twist a nascent Parliament into submission. The rule-of-law movement has campaigned for restoration of the judges as a first step to bolster judicial independence, within the larger context of upholding rule of law and strengthening constitutional democracy in the country. If the PPP leadership's misconceived approach to restoration has led to Parliament's inaction on the issue, the logical response cannot be an indiscriminate attack on the Parliament that causes a legitimacy deficit to representative democracy.

Parliaments don't make policies; they only debate and vote on policies pursued by parties. And the debate on restoration hasn't even been initiated in the Parliament so far. Further, neither do we have the luxury to lose patience with democracy, nor would a weakened Parliament serve the ends of the rule-of-law movement. Thus, between forcefully communicating unmistakable public demand on the restoration issue to persuade our representatives in Parliament to act, while not weakening parliamentary democracy in its struggle against unrepresentative forces in control of state power over the last decade, the rule-of-law movement needed to walk a tightrope.

Second, the response to the long march surprised everyone – in terms of its numbers as well as the depth of passion of the participants. As a matter of tactic, those leading the march probably wanted to end the show at a time when the mammoth assembly in Islamabad had the nation mesmerised. Transforming the march into a dharna would have put a cap on numbers and the likely thinning over the days would have been seen as a sign that the tide was ebbing. The sudden end of the march after three days of optimism and euphoria did, however, pose the question of whether the movement had run out of ideas. The leaders of the movement could have been more candid about their future course of action, and also the symbolism at the culmination of the march could have been more gripping.

For example, if there were expectations of a dharna, a 50-person token dharna could have been announced. This would be easy to sustain and would become an on-going symbol of the citizen's struggle for restoration, just like the lawyers' Thursday strike. A mass dharna call could be opted for later if the government still failed to act. Likewise, the long march assembly could have been asked to swear an oath to preserve and defend the Constitution and continue to struggle for rule of law and independence of judiciary to mark a ceremonial end of the march. And a group could have been nominated to present a petition to the speaker of the Parliament on behalf of the long march participants to act on the Murree Declaration.

Such steps might have better satiated the desire of the marchers to record the history that they were struggling to create. Some of this can still be planned and executed. But let us not forget that dharnas, oaths and petitions are all symbols of outraged public morality and aspirations. Let us not lose perspective here. None of this would be needed if the political parties and their nominees elected by the people of Pakistan on Feb 18 had given effect, without delay, to the indisputable demand of the public on the issue of restoration. And in this regard the one person who holds the key to restoration, or, phrased less flatteringly, who stands in the way of immediate restoration of the judges, is Asif Ali Zardari.

Asif Zardari's angst for the deposed judges (and especially Chief Justice Chaudhry) and his personal conflict of interest in helping install independent-minded judges have been dilated upon at length. At the risk of simplifying the matter, it can be argued that the long march was essentially an exercise to persuade Asif Zardari to (i) delink the issue of restoration from the devious constitutional package proposed by the PPP, and (ii) renounce the various "minus" formulas and restore all judges, including Chief Justice Chaudhry immediately. The choice of individuals placed in key offices in the PPP-led government and decisions made over the last few months against popular domestic opinion (or, more importantly, those not made--e.g., restoration/impeachment) supports the view that Mr Zardari and Gen Musharaf have shared patrons. And that Mr Zardari is loath to unravel the understanding reached with his patrons (who delivered the PPP leadership's return to Pakistan, along with the NRO) on issues including that of the judges.

The best Machiavellian hope for a peaceful long march, then, was that a resounding show of support for immediate restoration would provide Mr Zardari with another chip to bargain with his patrons and renege on erstwhile commitments given on the issue of the judges, should he wish to do so. As tremendous external pressure dogging the PPP's co-chairperson is often cited as the excuse (rather, apology) by sympathisers for his foot-dragging on the judges' issue. The less chivalrous view, however, is that an independent judiciary is neither agreeable with Mr Zardari's past deeds nor supports his future ambition in politics. That he is deliberately using Musharraf as a smokescreen and the bogey of external pressure, the likely exercise of 58 (2) (b) or slapping of martial law to play games with the nation while holding tight the reigns of power. For the end of political uncertainty and the general would also wash away the leverage that Mr Zardari presently enjoys.

If the latter view holds itself out to be true, would it be an irony or a tragedy that the future of Pakistan's democracy has fallen in the hands of an individual who is neither elected by his party nor by any constituency in Pakistan. But notwithstanding Mr Zardari's lack of democratic credentials, it would still be preferable to have him as prime minister instead of the more qualified and well meaning (yet largely powerless) Yusuf Raza Gilani. The reason is simple. Asif Zardari is the first politician who has managed to step into the shoes of the military in two regards. One, his claim to power is not backed by popular mandate. And, two, he has succeeded in segregating power from responsibility, and while monopolising his control over power he has none of the responsibility that comes along.

This distorted "Sonia-model" is particularly dangerous for democracy as well as for rule of law. We are still wondering whom to hold liable for the reckless and flawed policies of the Shaukat Aziz government propped up by the Musharaf regime. Who will the country hold accountable if the policies of the PPP-led government fail or if the decisions reached suffer from malfeasance? In terms of electoral democracy, none of the elected members of the PPP are meaningfully empowered within the existing party structure or government setup to make policy decisions and execute them. And from a rule-of-law perspective, nothing that Asif Zardari does as the PPP's co-chairperson will attract direct responsibility, for he is exercising power vicariously without any legal authority. If Asif Zardari falters within the existing setup, he would not even need an NRO to pardon his deeds!



Email: [email protected]

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