Crossroads again

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

The lawyers have reaffirmed their commitment to enforce and uphold the rule of law in Pakistan by formally announcing their decision to march into Islamabad yet again. This time they have also decided to stage a dharna (sit-in) till the restitution of all deposed judges. The PML-N has also pledged its support to the long march and reiterated the imperative of unconditional restoration all judges in accordance with the principle that they were unconstitutionally removed on Nov 3, 2007.

In the realm of security, the Taliban have dug their heels in Swat and their coercive writ is more effective than the writ of the government. On the other hand, the Obama administration has formally endorsed the Bush administration's drone policy and Defence Secretary Gates has testified before the US Senate Armed Forces Committee that the Pakistani government has been informed that US drone attacks will continue. The manner in which the Zardari-led PPP handles the next phase of the rule-of-law movement, the insurgency in Swat and FATA, Pakistan's evolving relationship with the Obama administration will determine the health and longevity of the PPP government.

If the unflattering performance of the incumbent government so far and its imprudent approach to addressing the problems of the country is also a prologue to the future, one is left with the grim prognosis that Zardari-led PPP is all set to preside over an unwarranted phase of confrontation with the lawyers, the civil society, the media and PML-N. This clash is unnecessary and will undoubtedly hurt the cause of democracy, constitutionalism and rule of law in Pakistan. But most of all, such an avoidable altercation threatens to inflict irreparable damage on the PPP itself and the ability of its government to sustain itself in office for the full term.

Things need not have come to this pass. Had better sense prevailed within the PPP-leadership, the ruling party would have been loath to inherit a problem that was General Musharraf's creation and his undoing. The PPP has willingly pitted itself against a middle-class-led progressive movement for justice – the only hope for change in an otherwise dark horizon – and has no one to blame for its present predicament except its short-sighted, chicanery-inspired approach to politics.

In making its cost-benefit analysis, it is now time for the PPP to quit obsessing about the possible gains and political mileage that could be derived from a principled restoration of all judges and focus instead on the harm it can inflict on itself by obdurately continuing with a failed policy and approach to restoration and judicial independence. It is amazing that the PPP (which as a mainstream party is supposed to have a finger on the public pulse) still doesn't comprehend that General Musharraf failed to demonise Chief Justice Iftikhar Chaudhry not because of lack of effort or commitment of the entire state paraphernalia at his disposal, or because Justice Chaudhry has made no mistakes in the past. But because Justice Chaudhry, Justice Ramday and other deposed judges have come to be reckoned in our national consciousness as the face of a welcome change that this country craves for.

The desire to live in a country where law rules, and not men, where men and women are held accountable for their acts and omissions, and where the promise of legal, political and social equality between citizens is not merely an obscure provision of the Constitution but a fact of life, is equally alive in Pakistan's urban centres as well as its hinterland. It is true that parochial loyalties and not issue-based politics still continue to determine the fate of elections in rural areas. But that is a consequence of the stunted evolution of our political institutions that keeps our democracy weak, and not evidence of rural indifference towards the future of Pakistan's justice system. The PPP needs to wake up to the reality that experience of the last decade, and especially the events of 2007, have shaken up public consciousness in a manner that it is now hard to quell. In this digital age the awareness of national issues in rural areas is no less profound than in the cities. The big challenge for our political elites is to unlearn the rotten ways of the past decades. And on that score the Zardari-led PPP is faring miserably.

This is no longer a Pakistan where you can appoint a compliant judiciary in violation of the Constitution and established legal norms and principles and expect to rule happily ever after. The Dogar Court, for example, doesn't add to the strength of the PPP government but only to its credibility-deficit and moral bankruptcy. This is no longer a Pakistan where the government can employ a stick-and-carrot policy to harness the media. Instead of focusing on ways to coerce the messenger into manipulating the reality in a manner that makes the rulers look good, the governments will now need to focus on fixing the reality itself. And further, it is not an activist judiciary, a mischievous media, troublesome lawyers and foreign-funded civil society that are conspiring to stir trouble and provoke a nation otherwise giddy with content. The pre-Nov 3 judiciary was responding to the public demand for unadulterated justice – which is exactly where the Dogar Court is failing – just the way present day media is attempting to satisfy the nation's appetite for untainted truth.

The contours of our political landscape have changed and Zardari-led PPP seems oblivious to this reality. On February18, 2008, Pakistan was hoping for a representative government that exhibits seriousness of purpose and possesses the ability and desire to drag us out of the muddy morass we are stuck in. But what we have stumbled into instead is a happy-go-lucky assemblage of drifters who cannot seem to get over the excitement of their newly founded power and how it can be abused to promote personal and parochial interests. Other than our security dilemma and economic meltdown, the urgent tasks at hand in Pakistan are two-fold: (i) to put into operation, the letter and spirit, the division of power between state institutions as mandated by the Constitution; and (ii) reform the depraved culture practiced by our power elites where personal interest, nepotism, cronyism, deceit and corruption trump merit, integrity, honesty and principles. But unfortunately the PPP-led government seems hell-bent upon dragging us further down the godforsaken path that has brought us to our sorry state.

The PPP's approach towards the restoration issue and the 17th Amendment is evidence of its resolve to keep in place a skewed power structure that faithfully serves the ruler-of-the-day. The Zardari-led PPP's staunch resistance to the restitution of Chief Justice Chaudhry is no longer based on President Zardari's personal grudge over not being released on bail when in custody during Musharraf's time or the fear that the Supreme Court might strike down the NRO (given that much water has passed under the bridge and Mr Zardari is now constitutionally protected, being president). Now the refusal to bring back the Nov 2nd judiciary is informed essentially by the desire to keep in place a compromised and beholden court that provides legal cover to all actions, omissions and indiscretions of the ruling regime, instead of fulfilling its constitutional mandate of functioning as an effective check on the exercise of executive power. Similarly, the Zardari-led PPP's dragging its feet on the repeal of the 17th Amendment is keeping intact the imbalance between the office of the president and the prime minister on the one hand and between the executive and the legislature on the other that renders democracy dysfunctional in Pakistan.

Equally loathsome is the culture of politics being practised by the Zardari-led PPP, which is partly responsible for the growing skepticism about the future of democracy in Pakistan. The Farah Dogar matter is a showcase for this cultural ethos, where disregard for merit, nepotism and cronyism are not just implicitly supported but vociferously defended in the name of loyalty. Unfortunately, the Zardari-led PPP has fallen too early to the maladies that generally afflict overlords once they are intoxicated with power later in their rule: a sense of infallibility coupled with paranoia about dissent. Once in power the ruler has a natural propensity to try and save the system that brought him to the helm. But democracy as a system is superior to all other systems of governance because it provides a mechanism for evolutionary change. Pakistan's misfortune is that our elected representatives are happier practicing a brand of controlled democracy invented by our dictators. That explains their singular focus on monopolising power and blocking all avenues for change.

We all know how that story ends. But then, that wicked sense of infallibility counsels the ruler of the day that history can be rewritten. There is still time for the Zardari-led PPP to avoid treading down that primrose path. If Chief Justice Chaudhry and other deposed judges are restored before the long march and a principled understanding is reached with the PML-N that the Punjab government will not be maliciously destabilised, an unnecessary confrontation will be avoided and PPP-led government will acquire more stability in the center. The health and future of our democracy is currently in the hands of Zardari-led PPP. The ruling party would be wise not to negotiate with the rest of the country by holding a gun to its own head.



Email: sattar@post.harvard.edu