Pliant legal eagles - Pakistan Can Move On, At Least A Little

Sayeed Hasan Khan and Kurt Jacobsen
The Statesman, 30 November

In the late 19th century a satirical American newspaper character named “Mr Dooley,” a fictional Chicago bartender, commented in common man’s terms on the burning questions of the day, including a shrewd observation that “the Supreme Court follows the election returns.” The lofty judges, despite their show of impartiality and objectivity, are usually influenced by shifts of power and public opinion. This was not necessarily a bad thing, just a fact of political life. Putting an ear to the ground arguably is even a democratic act. Tempering cold formal legality with a sensible bow to widespread political sentiment is sometimes a wise course, particularly if it serves the long term interests of the citizenry. The law is mostly a work in progress.

Supreme Courts lately have not exhibited much in the way of impressive intellect, political sensitivity or moral fibre. Or so it seems. Need we remind anyone that the endlessly disastrous presidency of George W Bush first lurched forward in 2000 when the US Supreme Court arbitrarily prevented a recount in Florida that would have made the recent Nobel laureate Al Gore President instead? Five ultra-conservative justices plainly voted their partisan interest over the letter of the law. The irony is that Bush blithely proceeded to disregard all court rulings that threatened to interfere in any way with his administration’s wild whims abroad or at home.

Stunning pettiness

In India, too a few years ago, Supreme Court justices declared activist Arundhati Roy in criminal contempt for criticising their decision in the Narmada dam dispute. The justices claimed that she brought the court as an institution into disrepute ~ as if anyone could surpass the damage they inflicted upon themselves by their stunning display of pettiness. They came awfully close to the stance that L’etat, c’est moi. This is what comes of insulating upper crust justices from the everyday knockabout lives of the majority. Keeping elites apart from the wider experience of the populace does not seem to breed sound decisions or, for that matter, good mental health.

The Pakistan Supreme Court, for all its adulatory press lately, is no exception. Througout the year, it has been portrayed abroad as stalwart saviors of the nation. Hardly. Through egotistical dithering, mixed with pointless personal vindictiveness, the justices stoked the very troubles they are celebrated for solving. The justices grandly acted as though they, not the nation, were all that mattered in implementing a delicate bargain to restore some semblance of democracy. All they needed to do to avoid imposition of the 3 November emergency’ and all the ensuing mayhem, was to play along with the negotiated arrangement ~ a quick validation of Musharraf as President for the next five years, then a general election in January, and the shedding of Musharraf’s odious epaulettes afterward. If ever there was a moment for prudent realism this was it. They preferred posturing instead.

It is not as if the justices were renowned for their personal probity and courageous devotion to the law. Even former Chief Justice Iftikhar Hussein Chaudhry, whose dismissal in March kicked off the crisis, was eager to collect personal perks. Indeed Pakistan’s judiciary, up and down the ladder, scarcely is seen by citizens as a reliable dispenser of justice. Most moneyed people who approach the courts have memorized the informal price lists for a favourable decision through an appropriate lawyer. Why were they so suddenly and stupidly unyielding? Perhaps the storyline in the foreign press of noble justices facing down a wicked dictator made the impressionable judges giddy. Perhaps a sudden bestowal of saintliness is too much for anyone.

Then again, perhaps the situation was too simple for convoluted legalistic mentalities to grasp. Recall that Bhutto, Musharraf and several small opposition parties worked out a deal for transition to democracy, with the US acting as mediator. All Musharraf needed was assurance of his Presidency. Instead, the court dangerously dithered, leaving Musharraf who was clearly looking for a safe exit, with the unpleasant prospect of being stripped bare before a legion of enemies. Could anyone be so dumb as to ignore what was at stake? The judges evidently calculated that even though they risked sabotaging the transition deal, that they still would be hailed as heroes worthy of bird-stained statues in public parks. The formula ~ General bad, lawyers good ~ was a rare moment where lawyers find themselves in good odour anywhere. Such moments don’t last.

If things are working out in the end, with Musharraf doffing the uniform before instead of after the elections (who cares so long as he does it?), it is no thanks to the preening legal eagles. So President Musharraf repopulated the Supreme Court, is releasing the detainees, and got his way ~ with the nervous blessing of the US. Did anyone really imagine a better practical solution was in the offing? Pakistan can move on, at least a little. So what next ?

In the four provinces caretaker governments are in place which effectively are the nominees of Musharraf or of collaborating political parties, which include the Muslim League (Q) and MQM, a regional party in Sind representing the partition wave of migrants from India, and some smaller parties. The Peoples Party is strong in southern Punjab while Nawaz Sharif’s Muslim League (N) dominates Lahore.

Imran Khan will most likely end up in bed with Nawaz Sharif and secure a seat with his backing. In Sindh the majority of seats will be grabbed by the PPP while urban constituencies will go to MQM, with the PML (Q) coming in third.

The wild card factor is Benazir Bhutto. Her duplicitous behaviour from the start of her negotiations with Musharraf has done damage to her party and benefited Nawaz Sharif. If there were a third side of her mouth she’d be speaking out of it. Benazir spouts populist slogans asking Musharaf to depart and swivels in a trice to issue statements supportive of a cozy partnership.

What matters most to the US is insurgency on the borders. The stormy North West Frontier Province is governed since 2002 by a fundamentalist coalition and is facing the insurgency as well. The JUI, led by Maulvi Fazalurahman, was the major coalition partner. The Baluchistan government too is run by the PML (Q) in partnership with Fazalurahman’s party. The mullahs will make electoral inroads in Baluchistan and the Frontier. An agreement the government made a year ago with local armed groups in Waziristan collapsed after the Lal Masjid stirred retaliatory assaults on soldiers there.

Civil war

No future government can survive if the civil war continues. So a political dialogue with the Taliban insurgency, no matter how repulsive to US eyes, is on the cards and Fazalurahman is the only leader who can initiate a credible dialogue. He was the leader of the opposition in the last parliament and Musharraf could not have kept any lid on violence without his support. Bhutto and Sharif reluctantly allow that they need Musharraf to placate the Americans. In this acknowledgement they show precious little trust in the Pakistani people.

No leader is willing to harness the resulting resentment and apply it for ameliorative change in policies. The tragic farce is that no one represents the poor who are two-thirds of the nation. Some will resort to religious militancy until, like many US evangelicals today, they realize they are being used by cynical elites, and also learn that sharia cannot solve economic needs.

Meanwhile, the spectacle of American advisors coming to Pakistan to promote democracy that they are busy undermining in their own country is beyond burlesque. But that is 'high politics' for you.

The authors are freelance journalists and researchers. Their book No Clean Hands was published recently