On tenterhooks again

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

The Zardari-led PPP seems to have missed another window of opportunity. Asif Zardari could have bolstered the approval ratings of his party and erased widespread public misgivings due to the PPP's flip-flops over the judges' issue by announcing the immediate restoration of the Nov 2 judiciary and embracing Aitzaz Ahsan on Aug 18. Over the years the PPP has lost much of its appeal in urban Punjab. The same constituency is also the most vociferous proponent of restoration, and thus the PPP's popularity has been in a nosedive since the failure of the Murree Declaration. By immediately restoring the judiciary led by Chief Justice Iftikhar Chaudhry upon Musharraf's ouster, Mr Zardari would have established that differences with the PML-N over restoration were genuinely linked to modalities and not to find wriggle room to implement the iniquitous minus-one formula.

And embracing Aitzaz Ahsan could have won back the support of the urban middle classes for the PPP, who, despite sharing the ideological bent of the PPP, are disenchanted with the party's dubious commitment to rule of law. No such luck, though. The policy of the Zardari-led PPP on the restoration issue is as equivocal today as it was ever before. Prime Minister Yousaf Raza Gillani continues to harp on the mantra of restoring all deposed judges immediately. Khurshid Shah announced on Thursday night that a debate over restoration of the judges will be initiated in the Parliament soon and a decision will be taken accordingly – another tactic to delay restoration, the merits of which have been debated to the hilt by all segments of the society. And other purblind parrots forming the second-tier PPP leadership (and there is no dearth in this category), such as the clueless Fauzia Wahab, are issuing appeals to Chief Justice Chaudhry to resign "in the larger interest of the public"!

Let us recall the primary contribution of the rule-of-law movement that caught the imagination of Pakistanis and garnered widespread public support: educating ordinary people about their right to a fair judicial system and be ruled under law and rousing them to seek what is their due. The popular street movement of the last 17 months and the progressive role of the media in proliferating the awakening together with the frustration of the cherished goals of the movement have left the people of Pakistan informed, aware, and angry. The awareness now provoked will be hard to quell, and the anger will subside only if the movement is channelled in the right direction.

Hundreds of thousand of citizens from all backgrounds and classes rallied behind the leaders of the lawyers' movement to converge in Islamabad and push for the immediate restoration of the judges. But when the immediate objective wasn't realised, the voices of the more radical elements within the rule-of-law movement, otherwise on the fringe, began to dominate the discourse. Many cast aspersions on the commitment of the leaders of the lawyer's movement to the cause of restoration when they called off the peaceful march without a "dharna," notwithstanding that these individual had articulated the necessity of an independent judiciary in the first place. This movement is no longer about Iftikhar Chaudhry or Aitzaz Ahsan, Munir Malik, Tariq Mehmood and Ali Kurd. These individuals are merely the symbols or flag-bearers of an idea whose time has come. The massive wave stirred up by the rule-of-law movement has acquired a life of its own and will not die down even if its flag-bearers recede into oblivion. That will be a tragedy, though, as the rule-of-law movement has had ubiquitous influence and appeal for being led by middle-class professionals of conviction, unimpeachable integrity and pronounced liberal ideals. If the rule-of-law movement fails or its leaders lose their ascendancy, the initiative for change will certainly fall into more radical hands who might not desist from employing more revolutionary and extreme ideas that might not bode well for the future of constitutionalism and rule of law in our country, as well as of the ability of the state to restrain such radicalism.

One wonders what is inspiring Mr Zardari to backtrack on his explicit written commitment to restore the deposed judges immediately after Musharraf's ouster. At least three factors can be identified that are contributing to the power games being played by the Zardari-led PPP in Islamabad at the moment at the expense of immediate restoration of the judges: the desire to seek bargaining chips in determining the distribution of powers between coalition partners in the post-Musharraf era, including the pursuit of the presidential office; keeping the promises made to foreign allies that Musharraf will be ensured a safe passage; and continuing to provide the US with a one-window operation in the war of terror even in post-Musharraf Pakistan.

Our best-case scenario is that foot-dragging over the restoration issue in an archetypical Zardari negotiation tactic to seek maximum concessions from the PML-N in the post-Musharraf distribution of executive power between coalition partners. By digging his heels over the issue that the PML-N is unquestionably committed to, Mr Zardari can negotiate his way through all his other demands, including control over the offices of president and rnors and distribution of the remaining cabinet slots. The issue of offering immunity to Musharraf is also linked to restoration. The N has taken the public position that it will not help promulgate a law to underwrite and protect the general's illegal acts. In the absence of such protective legislation, keeping in place a pliant Dogar Court would be the other option to keep legal actions against the general at bay.

It would, however, be more worrisome if Mr Zardari has been dragooned by the US to backtrack on his commitment to restore the Nov 2 judges. Going back to the summer of 2007, the deal brokered by our "allies" in the war on terror was designed to bunch together General Musharraf with the centre-left political parties (PPP, ANP and MQM) to give Musharraf's war effort political legitimacy. Is it possible that the US had now agreed to a minus-one formula (Musharraf being the minus) and is still trying to cobble together a coalition of centre-left parties to continue with Musharraf's unfinished business in the tribal areas? If that were the agenda, however, misconceived, breakup of the coalition over the judges' issue would be a masterstroke.

It would rid the government of the PML-N that the US administration staunchly mistrusts, and would also take care of Chief Justice Chaudhry-led independent judiciary that could possibly ask inconvenient questions about the unconstitutional practices being employed against Pakistani citizens in the war being waged in the tribal areas. That would be a grave mistake, though, which would not only polarise Pakistan but also jeopardise the medium- to long-term interests of the US in this region. There are no miracle solutions available to weed out the menace of insurgency, militancy and extremism being nurtured by our own people within our land. The struggle against this scourge will have to be protracted and backed by a national consensus that announces zero-tolerance for suicide missions.

As a civilised nation we cannot afford to be apologists for the cause of the Taliban who have blown up over a 1,000 Pakistani citizens in suicide bombings since 2002 and injured many more. This depraved lot, while owning up these missions as a mark of their success, boldly advocate the strategy of indiscriminately killing innocent civilians as a legitimate tool to change the policy of the Pakistani state. But while they can adopt an-eye-for-an-eye policy in this war, the government of Pakistan cannot indiscriminately kill its citizens, even if they are terrorists and murderers. The concept of rule of law dictates that irrespective of the horror caused by an individual, due process must be followed in bringing him to justice. Those blowing up innocent civilians and policemen across Pakistan must be brought to justice, but by arresting and prosecuting them and not be declaring war on them and blowing them up along with their families.

And this harder course, mandated by our Constitution, requires a protracted effort and convergence of national will that can only be achieved by a government that has the representation of parties that fall on the right and the left of the ideological divide. Thus, squeezing out the centre-right PML-N will undermine the ability of a government comprising centre-left parties to forge a national consensus on the issue of militancy. Consequently, a centre-left government fighting a war not backed by national consensus will be seen by the majority as a pawn in the hands of the US, and such perception will move the sensible majority of the country further right. This will polarise the country, and not just undermine the ability of the government to implement an effective strategy against the tribal renegades but also confound the American war effort in Afghanistan by pitting US interests against those of the people of Pakistan.

There need not be any such conflict. Pakistan has an inherent interest in controlling extremism within its borders. And thus convergence in the interests of the Pakistani and US people can be found, only if the US administration has the sense to back off and let independent state institutions find their feet in Pakistan. Trying to contrive a one-window solution with President Zardari calling all the shots while surrounded by a rubberstamp parliament, a docile judiciary and a willing military might backfire. Instead of attempting to render the constitutional system of separation of powers and checks and balances dysfunctional and deforming the working of a nascent democracy – the best guarantees of moderation and liberalism in the country – the US should rewrite its terms of engagement with the state and the people of Pakistan in the interest of a sustainable mutually beneficial relationship.



Email: sattar@post.harvard.edu