RIPPLE EFFECT
No Muslim can do this
By Omar R. Quraishi
Whenever a suicide bombing or a bomb blast takes place inside the country and ends up killing dozens of innocent people, most if not all of them Pakistanis, one often gets to hear the chorus -- from the usual suspects -- that (a) a foreign hand must be involved and (b) that 'no Muslim could ever do something like this'.
Frankly speaking, the emergence of this chorus -- which also seems to have come to the fore following Sept 20's terrible suicide attack at the Marriott Hotel in Islamabad -- nauseating because those who say that there is a foreign hand involved seem to forget that the Taliban are a Pakistani creation -- and this is something that retired generals admit to readily -- and were used by those who believe in the fallacy of 'strategic depth' to install an apparently pro-Islamabad government in Kabul in the mid-1990s. Over the years, they developed close links with much of al Qaeda's senior leadership, and the two virtually became indistinguishable because of ideological and other similarities, especially the ready acceptance of use of violence to achieve certain political and power-related objectives.

By Faisal Siddiqi

"Do I contradict myself?

Very well, then I contradict myself"

-- Walt Whitman. 

How does one explain the contradictions and absurdities in the legal strategy of the Pakistan People's Party (PPP) in relation to the restoration of the non-functional/deposed judges? The legal discourse of the PPP, as expressed in seven distinct contradictory public positions in relation to the restoration of the deposed judges, has been nothing less than a roller coast ride. First, there was the pledge to restore Iftikhar Chaudhry as the Chief Justice (Early November, 2007); second, for an independent judiciary (Mid Nov, 2007, to Feb 18, 2008); third, for the restoration of the judiciary but nothing specifically about the restoration of all the deposed judges (immediately after the elections, 2008). fourth, for the restoration of all the deposed judges through a parliamentary resolution (Murree-Bhurban Declaration); fifth, for restoring of all the deposed judges through the constitutional package (Eighteenth Amendment Bill, 2008);. sixth, for the restoration of all the deposed judges through a parliamentary resolution followed by an executive order (Islamabad Agreement, August, 2008); seventh, for the re-appointment of most of the deposed judges.

Contemporary discourse has tried to explain these contradictory public positions of the PPP either in terms of the 'stupid' explanatory framework or in terms of the 'evil' explanatory framework. The 'stupid' framework explains these contradictory public positions as a result of the legal incompetence of the legal advisors of the PPP and the political incompetence of the PPP in general. The 'evil' framework simply reduces these contradictory public positions to the 'evilness' of the persons occupying the PPP. For them, the battle between the PPP and the lawyers' movement is a battle between good and evil. The convenient thing about accusing someone as 'evil' is that no further argument is required because 'evil' has to be destroyed, not listened to or negotiated with.

The above 'stupid' and 'evil' explanatory frameworks may appeal to one's laziness but are repulsed by one's mind that demands an objective analysis of the facts. The problem really lies with the explanatory framework of the lawyer's movement. A lawyer cannot understand two things. First, why would someone deliberately adopt contradictory legal positions unless they are incompetent or malafide. Second, how could a political party which believes in constitutional democracy, not restore these independent and courageous deposed judges except for the reason that the political party must be incompetent or malafide.

On the other hand, for a political party in a transitional political system, these issues are hardly relevant for the following reasons. First, what is important is the solution of a judicial crisis regardless of a contradictory legal strategy. This is not a battle for getting a PhD at Harvard or Oxford but a battle fought in a conflicting and treacherous political arena. Second, in a transitional political system, constitutional democracy has to be made compatible with the goal of achieving and sustaining power. In other words, what is the point of having a constitutional democracy if it leads to the overthrow of the PPP government?

In short, the PPP wants both: constitutional democracy with the PPP in power, even if requires a certain taming and subversion of the institution of the superior judiciary. In the list of priorities for the PPP, the party is No.1, electoral democracy is No.2, constitutionalism is No.50 and the independence of the judiciary is an optional priority, preferably, at No.420.

No fear of contradiction and no fundamental allegiance to independence of judiciary are the two cornerstones of PPP's contradictory legal strategy in relation to the restoration of the deposed judges. This strategy is neither rooted in legal jurisprudence nor in legal ethics but rather in its legal politics. It is neither immoral nor amoral but rather the morality or immorality of its legal strategy is fundamentally structured by the political interest of PPP within the framework of electoral democracy.

Owing to this politically reductionist legal philosophy, a certain legal politics has been constructed and certain legal goals have been defined that have led to the abovementioned contradictory public positions of the PPP.

Our Lord Chancellor, Farooq Naek, has been entrusted with the following three basic legal goals: First, to secure and protect the kingdom of the PPP government, the party and its leadership from any politico-legal challenge from the superior judiciary; second, to solve the judicial crisis of the deposed judges by all peaceful, even if illegal, means -- in other words, get this crisis off the streets, out of the bar rooms and off the media; third, those elements of the illegal regime of Pervez Musharraf (proclamation of emergency, 2007, PCO, 2007, sacking of the judges, constitutional amendments made by Musharraf) should be rejected which do not suit the political interest of the government and the party but without creating a constitutional crisis. It is precisely this multitask contradictory portfolio of our Lord Chancellor, Farooq Naek, which has given rise to the following complicated legal story. In this legal story, there are the good elements (lawyers, civil society), the bad elements (Musharraf, judiciary formed under the PCO, 2007) and the messy element (PPP). As for the ugly element (PML-Q), it never was, nor is, relevant in this legal story.

On Nov 3, 2007, General Pervez Musharraf dreamt of a new and glorious unconstitutional era. In this glorious unconstitutional kingdom, the Proclamation of Emergency, 2007 and Provisional Constitution Order, 2007 gave birth to two institutional changes namely the wholesale sacking of independent judges and purported constitutional amendments made by Musharraf which indemnified and validated the Nov 3 unconstitutional actions. Consequently, out of the whole sale sacking of independent judges came into being a new oxymoronic institution i.e. a subordinate superior judiciary. This Supreme Court, formed under the PCO, 2007, in the 'Tika Iqbal Muhammad Khan case' validated its own existence and also validated the purported constitutional amendments made by General Pervez Musharraf.

With no ambition to write a new chapter in legal jurisprudence and with no fear of acting inconsistently, our Lord Chancellor has adopted a legal strategy of picking and choosing from the aforementioned unconstitutional inheritance in order to achieve the three legal goals -- a subordinate superior judiciary, resolution of the judicial crisis and selective rejection of the Nov 3, 2007, actions.

Judicial power, like all other institutions in Pakistan, is concentrated at the top. If you want a pliant judiciary or if you want to neutralise constitutional conflicts with the judiciary, the answer lies in having a pliant chief justice. Of course, a pliant Supreme Court is a bonus. Our Lord Chancellor's strategy was simple. To have or not to have the Supreme Court formed under the PCO was never a question. A chief justice and a Supreme Court formed under the PCO was an unconstitutional inheritance which every unstable and consolidating political government dreams about. No more tension filled days and sleepless nights about checks and balances being imposed by an independent judiciary. And the future promises more goodies for the consolidating political class because if the judicial amendments in the constitutional package are passed, the PPP government would create a constitutionally amputated superior judiciary and not even a 100 Iftikhar Chaudhries would make a difference. Thus, the first legal goal seemed to have been achieved.

Unlike the strategically lazy Pervez Musharrraf, the PPP government understood clearly that the judicial crisis could not be resolved without the return of the deposed judges. But the return of the deposed judges had to be made compatible with the retention of the chief justice as well as the superior judiciary formed under the PCO. What people seem to forget is that the removal of the superior judiciary formed under the PCO was never on the agenda, either in the Murree-Bhurban Declaration or the Islamabad Declaration. The real difference between the Murree-Bhurban and Islamabad Declarations and this new strategy of selective re-appointment is that the latter allows the selective return of most, not all, of the deposed judges.

It goes to the credit of our Lord Chancellor that, regardless of the complications caused by the recent re-appointment of around 24 deposed judges, it is the first time in the judicial history of Pakistan that judges removed by a military dictator have returned to their original judicial position. This is truly historic. But apart from making history, there were additional advantages of this approach of selective re-appointment. Since it was selective, certain deposed judges were dropped, especially Chief Justice Iftikhar Chaudhry. And since it was re-appointment, the legitimacy and appointment of the superior judiciary formed under the PCO was not questioned.

This resolution of the judicial crisis is another example of the crude pragmatism underlying the politics of reconciliation i.e. the forced reconciliation of the judiciary formed under the PCO with the deposed judges. The PPP's logic behind this resolution of the judicial crisis is simple -- the lawyers' movement will be off the streets, out of the bar rooms and off the media if most of the deposed judges are restored because the key to the resolution of the judicial crisis does not lie with the lawyer's movement but with the deposed judges. Alas, the abovementioned second legal goal seemed to have been achieved.

On the basis of legal jurisprudence and legal logic, the strategy of the Lord Chancellor is just plain absurd. Because, accepting the legitimacy of the judiciary formed under the PCO also begets the acceptance of a number of unconstitutionalities i.e. Proclamation of Emergency, PCO, 2007, the sacking of the deposed judges and the purported constitutional amendments made by General Pervez Musharraf.

Does the PPP government accept the unconstitutional actions of Nov 3, 2007? Or can it politically afford to accept them? The answer of the Lord Chancellor would be "No", I presume. But the problem of the Lord Chancellor lies in his contradictory multitask portfolio. How to legitimise the judiciary formed under the PCO without accepting the Proclamation of Emergency, the PCO, 2007, and the purported constitutional amendments made by General Pervez Musharraf. The answer to this problem is simple for people who do not suffer from the fear of contradicting themselves.

The PPP government rejects the emergency and the PCO, 2007, because it refuses to recognise the purported constitutional amendments which indemnified and validated the Nov 3 unconstitutional actions of Musharraf. This rejection is obvious from a bare reading of the Constitution (18th Amendment) Bill, 2008, and from the official position of the law ministry. This is truly historic because this is the first time in Pakistan's constitutional history that a civilian government has refused to recognise the constitutional amendments made by a dictator. But the Supreme Court formed under the PCO in the 'Tika Iqbal Muhammad Khan case' has also validated the existence of the judiciary formed under the PCO. Therefore, by only accepting the Supreme Court's judgment in the 'Tika Iqbal Muhammad Khan case', our Lord Chancellor seems to have legally kicked out Musharraf but seems to have kept the judiciary formed under the PCO. In other words, he says "No" to what benefits Musharraf (emergency, PCO, 2007, and the constitutional amendments] and says "Yes" to what benefits the PPP (judiciary formed under the PCO). Indeed, the abovementioned third legal goal is fulfilled by this remarkable feat of legal gymnastics.

This legally absurd but politically understandable strategy of our Lord Chancellor refreshes memories of the Asma Jilani case (1972), in which Mr. Yahya Bakhtiar, then Attorney General of the democratic government of Zulfiqar Bhutto's, shockingly argued in favour of the legality of Yahya's Khan's martial law in order to avoid embarrassing questions being asked about Zulfiqar Ali Bhutto's civilian martial law. Indeed, our Lord Chancellor seems to be in good company.

How does one judge the abovementioned legal strategy of our Lord Chancellor? It has to be judged in terms of its legal goals, and not in terms of whether our Lord Chancellor will go down in the annals of legal jurisprudence as a great legal jurist.

Surely, the politico-legal danger to the PPP government, its leadership and party is not from the superior judiciary itself. The real danger is from any superior judiciary being used as a conduit by the military-bureaucratic establishment to destabilise the democratic process and ultimately to validate an unconstitutional civilian or military coup. Nov 3, 2007, tells us about two institutional responses to the unconstitutional actions of the military-bureaucratic establishment: that from the deposed judges is one of resistance and sacrifice; the other from the superior judiciary formed under the PCO, 2007, is one of compromise and acceptance.

Anyone worried about future challenges from a military-bureaucratic establishment should preserve and enhance the institutional response of resistance and sacrifice of the deposed judges. Yes, this rising independent judiciary in the form of these deposed judges will create the normal constitutional headaches for any political government but more importantly, they are allies and assets in the fight against the real enemy of democracy in Pakistan i.e. the military-bureaucratic establishment. Our Lord Chancellor's legal strategy appears short term because it creates temporary legal stability on the basis of a pliant superior judiciary but, at the same time, by celebrating the superior judiciary formed under the PCO, it encourages every future superior judiciary to again act as allies for future martial laws. In other words, the message to the superior judiciary is crystal clear -- please don't bother to resist any future martial law because your resistance and sacrifice is a nuisance for democratic governments.

I also don't think that our Lord Chancellor has achieved his second goal of solving this judicial crisis because the real solution to this judicial crisis lies not in simply the return of most of the deposed judges but rather in selling the solution to the lawyers' movement. This judicial crisis will remain a bleeding wound for the PPP government unless the lawyers' movement confers legitimacy on any solution proposed by the PPP government. More importantly, the symbol of this judicial resistance, Chief Justice Iftikhar Chaudhry, will be a persistent reminder and mobiliser of this unresolved judicial crisis and there are no signs that he will go peacefully. Please do remember that the ISI, MI, Pervez Musharraf and the whole infrastructure of our neo-colonial state could not evict him from the Chief Justice's house. Surely, his illegal eviction from his legal post as the head of the superior judiciary is a much more uphill task.

But the real dangers lie in the legal gymnastics of our Lord Chancellor's partial acceptance of the unconstitutional actions of Nov 3, 2007, by accepting the validity of the Supreme Court's judgment in the 'Tika Iqbal Muhammad Khan case' in order to legitimise the superior judiciary formed under the PCO. To re-state, the 'Tika Iqbal Muhammad Khan case' validated, in all respects, the unique second martial law of General Pervez Musharraf. Therefore, this partial acceptance, in actuality, is total acceptance of this unique second martial law.

This is a dangerous precedent because this martial law was unique in two diabolical ways. First, it was a martial law without suspending the prime minister, cabinet, parliament, provincial government and provincial assemblies. Second, it was a martial law which only targeted a single institution i.e. superior judiciary. This is a very useful and powerful concept and precedent for any future military dictator to follow i.e. a short, simple, selective, repressive and effective martial law. Surely, it is a reasonable expectation from our Lord Chancellor, Farooq Naek, that he should at least not pro-actively contribute to the preservation and development of new theories of successful martial laws. Further, we would also humbly request our Honourable Lord Chancellor to avoid such legal gymnastics, if not for the sake of democracy or for the sake of the party, but for the sake of his own self-interest because we can assure him that any future imposition of martial law will certainly lead to our Honourable Lord Chancellor being sacked from the law ministry.

(The writer is a senior Karachi-based advocate.

Email: siddiqilaw@yahoo.com)

By Shoaib Hashmi

It was an innovation that we took close to our hearts immediately -- because they were not only useful but promised to test out oriental ingenuity to the limit -- and we came through with flying colours. We must be the only people among whom the polythene bag is the normal container for yogurt, milk and rasgullahs -- by yogurt I don't mean the namby pamby machine made stuff that comes in cones, I mean your solid he-man dahi that comes out of a paraat!

The advent of the polythene bag means that you can finally take home gol gappas -- the gappas in one bag and the spicy water in another with the open end tied into a knot to keep the stuff safe. In fact it would not be too far fetched to say that we have found a million uses for the bag nobody would ever have thought of.

And now a court in Lahore, on a petition by a lawyer and a bunch of 'concerned citizens', has banned polythene bags in the whole province! Not unsurprisingly, public comment, in the shape of myriad editorials and letters to the editor and articles, has been universally laudatory. Although some letter writers, and even a few editors have got confused and a bit lost somewhere between 'bio-degradable' and 'degradable' and 'gradable'! Serves them right for concocting such a convoluted term for a simple process.

After all, all that 'non-bio-degradable' means is that the ruddy things have a tendency not to rot away naturally for a long time -- estimates range up to a few thousand years. But then that is something we have known and even cribbed about for some time. Being light and waterproof, polythene bags have a habit of floating about wherever water is flowing and eventually blocking up the local sewer and leaving the neighbourhood awash in its own waste.

And so everyone praised the court for finally doing something about it. Until it came time to actually enforce the court order! Then they started staring at the wall and humming and hawing. The polythene industry is one of the largest in the province, employing tens of thousands of people and no one wants to throw ten thousand people out of work.

So the City District has coolly announced that it has transferred the responsibility for liaising with the manufacturers to the assistant director, who has deputed the district officer who in turn has transferred it to the deputy district officer who says it's a dumb idea anyway because banning polythene bags outright would cause people to switch to paper bags which is even dumber because it causes deforestation!

Actually no one is contesting the court order, merely pointing out that polythene bags are immensely convenient and people will be reluctant to give them up outright. No one wants to go back to the old ways when the equivalent of the shopping cart was the household bag, or thaila stitched of sturdy linen, and used to lug the daily rations of meat and vegetables and fruits. Of course the bag had to be scoured and rinsed every month or two weeks which is why we took to polythene bags like ducks.

The alternative was the basket or tokree made of wicker or leaves of the date palm. These couldn't be washed so we let nature run its course and the tokree to gently degenerate and rot away with time and use. Now you know why the polythene bag became so close to our hearts and why everyone thinks any attempt to do away with them will be resisted even by law abiding citizens!

By giving to the Educate Pakistan Campaign, citizens have sent out a clear message: that they will not leave our tomorrow to someone else... 

By Gibran Peshimam

These are troubled times that we live in. Amidst all the despair caused by violence, death and disturbance, it is not difficult to lose hope; lose sight of all that is good and all that can be done. Indeed, few will blame the citizens of this country if they feel defeated; feel that expectations are misplaced and futile. But we are not a nation that folds in the face of despondency -- that much is evident.

Through the course of Ramzan, aside from the 'Educate Pakistan campaign' there was a spate of philanthropic efforts across the country. The enthusiastic participation by citizens in each campaign in itself presented a clear message. By giving to the cause of Shaukat Khanum Memorial's calls to help in the fight against cancer, Pakistanis participated in the battle against the cancer of hopelessness. By donating to the cause of Layton Rahmatullah Benevolent Trust's campaign to help give sight back to the sightless, Pakistanis contributed to the effort to ensure that we as a nation do not lose sight of the potential of tomorrow amid a murky today. By providing funds to the National Institute for Child Health, Pakistanis invested in the health of our future. There were campaigns by the Kidney Centre, Aga Khan University Hospital, Sindh Institute of Urology and Transplantation, besides countless others, each appealing to the humanity and compassion of Pakistanis. This is not a struggle that is being fought out on the battlefield. This is one that is being waged in the hearts of the people of this nation.

Aside from the obvious appeals of such campaigns, these organisations were essentially appealing to the fundamental optimism of Pakistanis; to their belief that they can make a difference in the endeavour to cut through the smog of depression that has engulfed our nation so that we may breathe collectively in the clear air of hopeful expectation. And this belief has come out victorious.

By giving to the Educate Pakistan Campaign, which hundreds of donors have done with open hearts, citizens have sent out a clear message: That they will not go silently into the night; that they will not leave our tomorrow to someone else. They have corroborated the belief that an educated Pakistan is a better Pakistan; that our children are our future and this future has to be shaped and nurtured by us by assisting organisations such as Rizwan Scholars, The Citizens Foundation, and the CARE Foundation, which have been ever-vigilant in the effort to build a brighter future.

The response to the Educate Pakistan campaign has been overwhelming. It has exceeded all expectations and shattered all misconceptions -- and there are still a few days to go. Hopefully, over the remaining few days, more Pakistanis will set help set the bar even higher; step forward and be counted to show all and sundry that we are not a defeated nation. That love and hope can conquer all.

From the smallest to the biggest, each donation has not only helped the cause of education in Pakistan and other noble causes, but shown that the belief in a better tomorrow is still very much alive despite all the despair. It has shown that though there is enough agony to douse all hope here in Pakistan, the light of faith and expectation has not been eclipsed. It is heartening and encouraging and a glowing testament to the fortitude and humanity of Pakistanis.

Yes, these are troubled times we live in.

But we are not a nation that folds in the face of despondency.