Institutions we made
Editorial

Independence Day every year is a time when TNS, for once, stops complaining. We start looking around for things, people, acts that are worth celebrating. And one must confess that in all previous years we had to look hard to find those things, people, acts. But find them, we did.

Shall we discuss the military?
Yes we must -- through an intelligent and constructive discourse rather than rumour and whispered calumny
By I. A. Rehman
"The defence forces are the most vital of all Pakistan Services and correspondingly a very heavy responsibility and burden lies on your shoulders." -- Quaid-i-Azam to Staff College Officers, June 1948

Fall and rise
Expectations from the judiciary are unusually high, especially because of the renewed vigour after the restoration of the CJP
By Asad Jamal
"The judiciary cannot fight dictators. We require strong political institutions which are lacking in the country." 
--Justice (Retired) Qazi Muhammad Jamil 
Among the three pillars of the state, judiciary has a particularly difficult and, according to many, an unenviable task to perform: it is part of the state, yet it is expected to watch and guard against the excesses of the other two -- the executive and the legislature. Independent and assertive judiciary, experience shows, works as a bulwark against violation of citizen's rights by state institutions.

Voice of the people
The assertiveness of Pakistan's newly independent media signals the return of a popular movement for democratic rights
By Adnan Rehmat
In the 'YouTube' world we live in, where political events unfold in real time, a single video clip can swing an election or provoke a revolution. In the US, it unseated Senator George Allen for name-calling a citizen of Indian origin, giving Democrats a one-vote majority in the Senate. In Tbilisi, Georgia, television coverage of the government's attempt to shut down a popular TV station brought tens of thousands of people into the streets, playing a major role in the 'Rose Revolution'. Pakistan is the latest country to teeter on the edge of a television revolution.

Executive dominated
The executive today stands challenged by an assertive judiciary, a belligerent media, and civil society organisations that form large pressure groups
By Adnan Adil

Pakistan's all-powerful executive is under strain. It is losing authority to Islamic militants gathering force in northwestern areas bordering Afghanistan. An assertive and active higher judiciary is putting limits to the executive's authority and impinging on its hitherto unchallenged territory. An aggressive and fast expanding electronic media is bringing it under increasing scrutiny and public debate. Civil society organisations, largely supported by the western countries, have grown into a large pressure group making the executive answerable to its actions and getting its demands met through social action. 



C
Ordinance factory

The role of assemblies has been reduced to bare minimum by design
By Shahzada Irfan Ahmed
"We'll get General Musharraf elected as president in uniform a hundred times," is a statement that we have often heard, coming from ruling party parliamentarians many a time. This shows how independent and wary of constitutional responsibilities these legislators are. It's an open secret that the prime objective of legislators in our country has been to prove their allegiance to respective party leaders, even if it comes at the cost of their own self-respect and common man's interest.

 

 


Institutions we made

Editorial

Independence Day every year is a time when TNS, for once, stops complaining. We start looking around for things, people, acts that are worth celebrating. And one must confess that in all previous years we had to look hard to find those things, people, acts. But find them, we did.

Usually it was people, individuals, doing their own thing, trying to make a difference and rather successfully that made it to our Special Reports. Such examples lifted the spirits - of the readers and the writers alike. Yes, and that was the idea.

This time too, as Pakistan turns 60, we wanted to celebrate. So we tried to move beyond individuals... to institutions.

Let's have a look at the institutions we made in these 60 years. Some of us immediately retorted: 'What? Did we make institutions or unmake them?' Others: 'Institutions we made or what we made of institutions?'

Well, both the points were well-taken. We decided to look at the significance of institutions. We decided that military in our peculiar case was an institution that needed a careful analysis...Because all other institutions owe their strength or weakness to this one. Media, that's us and those close to us, has attained an influence that's not too easy to ignore. Judiciary, in its moment of glory, poses some serious questions regarding its future role. Legislature, the first one in the last twenty years to complete its tenure, and yet looking so feeble. And lastly, executive that in our case is hardly distinguishable from military appearing under real threat.

The balance of power offered in the shape of media and judiciary is indeed a cause to celebrate. But we still have a long way to go. Here is a modest attempt to find that way. 

"The defence forces are the most vital of all Pakistan Services and correspondingly a very heavy responsibility and burden lies on your shoulders." -- Quaid-i-Azam to Staff College Officers, June 1948

General Ziaul Haq did a great disservice to Pakistan's armed forces when he tabooed any public discussion on how they fulfilled their heavy responsibility and added a provision to the constitution under which criticism of the armed forces (and the judiciary) could disqualify a person from being or becoming a member of parliament.

As a result the space for intelligent and constructive discourse has been taken up by rumour and whispered calumny. No sane citizen can like some of the snide remarks one hears these days nor can the dangers in running down the armed forces be ignored. Every country needs armed forces. Pakistan cannot be an exception. A time has come that the prestige and the image of the armed forces must be saved through an unbiased discussion of their heavy responsibility and how best it can be discharged.

The standards for Pakistan's armed forces were, to some extent, set by the founder of the state himself. The Quaid-i-Azam was quite an authority on the armed forces and was foremost among those who advocated the indigenisation of the British Indian Army officer corps and the opening of Sandhurst-like military academies in the subcontinent in the nineteen twenties. In 1925 he was made a member of the Sandhurst Committee, later known as the Skeen Committee, after its chairman's name, and he was also a member of its sub-committee that had been created to study military training facilities in Europe and North America. When the Round Table Conference (1930-31) set up a sub-committee on defence problems, the Quaid was on it and took keen interest in its work.

The Quaid was a strict disciplinarian. He emphasised discipline both within the armed forces and their disciplined allegiance to constitutional authority. He opposed the British plan to try the military officers who had joined Subhash Bose's INA and blamed the government for its failure to inspire the troops with the ideal of discipline under a lawful regime. In Pakistan (he was speaking on the subject in 1946, when Pakistan was clearly visible on the horizon) the military would be totally loyal to the basic law of the state, he declared and concluded: "When the time comes, my Army in Pakistan shall without doubt maintain all loyalty, whatever be the liability, and if any did not do so, be he a soldier or be he an officer or a civilian, he will go the same way as William Joyce or John Amery." (Both of them were condemned as traitors.)

When after independence the Quaid visited the Staff College, Quetta, he was apparently disturbed by signs of some military officers' lack of understanding of their constitutional obligations. He read out the oath, asked the audience to mark the words 'Constitution and the government of the Dominion of Pakistan', and advised the officers to study the constitution and understand the implications of the pledge to be faithful to it. In conclusion he said: "... the executive authority flows from the head of the government of Pakistan, who is the Governor-General, and therefore any command or orders that may come to you cannot come without the sanction of the executive head. This is the legal position."

Unfortunately the armed forces have suffered enormously by getting involved with civilian works for long periods. There is need for an objective analysis of the damage caused to the military by its opting for martial law, something more than politicians' and journalists' aimless targeting of the military. The founders of the subcontinent's armed forces were very clear about protecting them against corruption that was unavoidable if they joined civilians in day-to-day administration. Ayub Khan, for all his faults, was the last Pakistani commander to remember this lesson.

At the moment we have the views of former Gen Attiqur Rahman, one of the most upright and capable army officers we have had. Says he: "No soldier worth his salt likes administering with the backing of martial law. Civil problems are immense and few outside the civil administration can even start to understand the difficulties involved. A little bit of netting over the sweetmeats is one thing, but to deal with the large fundamental problems, with little or no understanding or training, is another matter." (From 'Back to the Pavilion', OUP, pp 147-48)

Gen. Attiqur Rehman had opposed Martial Law as a long-term answer to the crisis of 1968-69 and had told Yahya Khan when the company was debating the imposition of martial law that was eventually proclaimed in March 1969: "Any attempt to embark upon the resolution of the wider national problems under the cover of martial law was, in my view, fraught with dangers. I explained that martial law for any length of time becomes counter-productive and hatred to it is the outcome. I may have imagined it, but there appeared to be a sigh of relief. Yahya turned round to Peerzada and said, 'We were thinking of two months, weren't we?' Peerzada agreed. That is the problem. You want power for a short time -- to do good -- but then you fall in love with it and a divorce is impossible."

It should be worthwhile for a team of economists, sociologists and psychologists to probe the phenomenon of what is described as the military's attraction to power. Did the problem start with the military's financial autonomy? General A.O. Mitha ('Unlikely Beginnings A soldier's Life'; OUP) has discussed this matter. Recalling the days when military projects were subject to the Finance Ministry's approval, he says: "it was only after the Finance Ministry had agreed to it that the project could be initiated. If a project which had been budgeted for could not be started or completed, the money could not be used for other purposes without the agreement of the Finance Ministry. I understand that this system has been changed; the army is now given a lump sum as a budget and thereafter it is up to the COAS to decide how the money is to be spent. From what I have seen, it has very often been misspent. In my opinion, the old system was better because it enabled the government to manage the overall national budget, to ensure that it was effectively utilized" (p. 159).

The decline of the civilian authority persuades Mitha to check himself. While firmly maintaining that the "government should be more concerned with how the defence forces are organised and with the control of the defence budget," he is not sure how this can be done and suggests "a National Security Council is the answer." He discusses some consequences of GHQ's financial autonomy in a chapter with the tell-tale heading "Land Mafia in Lahore Cantts."

General Attiqur Rahman is concerned with another aspect. As an old-time warrior he put a premium on austerity and wanted a field-oriented Corps HQ and "that 'plushy' furniture, etc., was not required." Came the Chief, General Yahya, and noting the barrenness of his office, offered Gen. Attiq "a large sum of money to refurnish it." "I was too weak to resist," he says, "so we later had sofa sets, tables and the rest. I am quite sure that I did not work any better, but my office was nothing compared to the military offices nowadays which are almost better than most five-star hotels. Of course, the junior formations and units take the cue. I think it softens the officers concerned in mind and body." ('Back to Pavilion', p 133) Gen Mitha also wondered "how and why this desire for luxurious working conditions has crept in. It seems to have reached its peak in Gen Ziaul Haq's time and there seems to have been no effort to curtail expenses since." (Mitha, p 113. Mitha completed the book shortly before his death in December 1999.)

Gen. Attiq recalls a British army officer's warning that "your officer corps will soon lapse into parochialism and bhai-bandi." Attiq's reaction: "of course, once the British 'umpire' had left, this problem would be felt. The problem is there but not to the extent prophesied by Milman -- not yet." (Attiq, p 70) Emphasis added). A relevant incident of some historical importance involved Gen. Zia. Maj-Gen. Nawazish had asked that Brigadier Zia "be court-martialled for disobeying GHQ orders", by "commanding the Jordanian Armed Div in an operation against the Palestinian refugees, which resulted in the slaughter of thousands of Palestinians." Zia sought Mitha's help and the latter referred him to General Gul Hasan who did save Zia. "I was most surprised," says Mitha, "that Zia had been let off because Yahya had seemed quite determined that he must be punished." (Mitha, p 321)

With financial autonomy came other powers. Attiq mentions the case of a Brigadier who was not made a General by Ayub Khan because he "found him out in time," and adds: "The power of the C-in-C, and now the Chief of the Army Staff, is tremendous, and at some point in time it will have to be tempered by an Appeal Board of civilians at the highest level". (Attiq, p 97)

All this is merely a sample of what needs to be discussed in the interest of Pakistan's valiant soldiers themselves. The armed forces may be answerable for quite a lot but they have also done much to win a prominent niche in the hearts of the people. An important part of the heavy responsibility, in the Quaid's words, the armed forces bear is not to let their image in the eyes of the people change, because that would be unmitigated disaster.

 


Fall and rise
Expectations from the judiciary are unusually high, especially because of the renewed vigour after the restoration of the CJP

By Asad Jamal

"The judiciary cannot fight dictators. We require strong political institutions which are lacking in the country."

--Justice (Retired) Qazi Muhammad Jamil

Among the three pillars of the state, judiciary has a particularly difficult and, according to many, an unenviable task to perform: it is part of the state, yet it is expected to watch and guard against the excesses of the other two -- the executive and the legislature. Independent and assertive judiciary, experience shows, works as a bulwark against violation of citizen's rights by state institutions.

Any discussion on the performance of courts in Pakistan inevitably and justifiably leads to references to the political and constitutional issues decided by the superior judiciary. Though the July 20 decision by the Supreme Court, and the events leading to it, has given a new colour and vigour to the debate, the past needs to be reassessed and not to be forgotten.

A glance at the past sixty years shows that it is not only the constitutional challenges posed by military dictators where the judiciary failed to be an effective bulwark for the protection of constitutional rights of the people, the sovereign, but also in simple and plain cases of fundamental freedoms and civil rights. Exceptions apart, it is only recently that one has seen the apex court taking notices of violations of the rights of the citizen, and that too because of the selective activism shown by the top judge. Otherwise, even in this age of glory, one is at a loss to understand the four-year-long incarceration of a member of National Assembly Javed Hashmi, under an obsolete law and on baseless charges which could not be proved in any court of law. In this case, even the Supreme Court as late as in October 2006 presided by the now restored Chief Justice Iftikhar Muhammad Chaudhry refused to grant relief despite blatant executive oppression in a case of no evidence. This was not a mere travesty of justice, this was blatant judicial oppression which cannot be ignored by merely declaring it to be a result of 'oversight'.

Regarding Zulfikar Ali Bhutto's execution, Justice Nasim Hasan Shah, one of the judges who decided in favour of death penalty, has lately admitted in an interview with an unacceptable hint of regret that they had to oblige the dictator 'as their jobs were under threat'. These and many other such cases will haunt the Pakistani judiciary for a long time to come, including the ones which do not have the news value to become the main stories in the national media.

Courts everywhere in the world work in a delicate balance between upholding and challenging the distribution of power. Consider the much reported recent exchange of remarks between the Prime Minister and the Chief Justice of India on a common platform. Manmohan Singh, in his speech, suggested the judiciary should not cross the thin line dividing the two wings, the Chief Justice Mr Balakrishnan asserted that the perceived tension between courts, legislature, and the executive was a natural and inevitable corollary of a healthy democracy.

The Indian prime minister's remarks came in the backdrop of a number of legislations being struck down by the apex court; the ensuing debate, however, only reflects the degree of maturity at the highest levels of state. While a democratic dispensation may tolerate its courts to work in an independent manner depending on the strength of its civil society and the nature and maturity of its polity, autocratic and dictatorial regimes are averse to such freedom and that is where the judiciary faces the real test of its strength.

The courts face testing times when they are faced with an executive whose democratic credentials become questionable and the judiciary is pressed into service for the oppressive acts of the state. In such situations the judiciary offers the sole safeguard. Such was the situation when the Indian Supreme Court upheld the proclamation of Emergency (1975) by Indira Gandhi whose legitimacy as a member of parliament and democratic credentials had become doubtful after she had brazenly adopted autocratic means of rule. On June 12, 1975, her election as a member of parliament had been declared null and void. Sensing the impending danger, after managing to get a stay in the Supreme Court, Indira Gandhi proclaimed emergency on June 26. What followed the proclamation is described as the darkest hour in the history of independent India and its judiciary, aftershocks of which are felt even to date.

Yet, if past is anything to go by, it would not be wrong to say that the Indian courts have relatively acted far more independently than ours. The reason could be found in the fact that ours is an executive-dominated state, whose contours of power are mostly defined by the armed forces of Pakistan which do not figure anywhere in the scheme of state in the constitution, the grund norm.

Given the perceived status and prescribed constitutional role of the judiciary, almost all the important politico-constitutional questions have understandably and justifiably found their way to the superior courts. Evidence suggests that the stature of the courts has risen during short interregnums of democracy and declined under total dictatorship or where the army was behind the scenes playing questionable extra-constitutional role. Consider the facts. Decisions in Asma Jilani case (1972) which overruled the doctrine of necessity, restoration of the Nawaz Sharif government (1993), Judges' case (1996), were all rendered while elected dispensations were on the scene. On the other hand, cases such as Maulvi Tamizuddin Khan's (1954), Dosso (1958), Nusrat Bhutto (1977), and Zafar Ali Shah's case (2000) were all decided under army rule, support this assertion. The non-restoration of Benazir Bhutto's two governments may be put in the category where the army stayed behind the scenes.

In Usaf Patel case (1955), the Federal Court ruled that the head of the state could not make constitution by ordinance. In other instances, however, such as the Mehmood Khan Achakzai's case (1997), the apex court disappointed by declaring that the presidential powers to dismiss the government and dissolve the Parliament under the eighth amendment introduced by late dictator Gen. Zia as a bargain with the 1985 parliament struck a balance between the powers of the prime minister and the president in a parliamentary form of government.

Only time will tell if the decision in the Chief Justice case (2007) is an aberration or a trend setting example. Many cases of constitutional import are pending before the superior courts and many more are expected to come up in coming months. In the past, judges have been reported to have taken shield against criticism with the argument that a few judges should not be expected to fight dictatorships when the political foundations of the country are weak. The judges of the present Supreme Court must have felt the heat out in the streets during the hearing of the case. Though the support provided to the court by the sustained agitation of the lawyers for four months cannot be over-emphasised, it would be unjust for the courts to expect the same kind of reaction every time an issue comes up.

The first major constitutional challenge to the Pakistan judiciary came in 1954 in Maulvi Tamizuddin Khan's case where it upheld the executive's decision of dissolution of the constituent assembly. It set the trend of preserving the state rather than putting it on the track where it had strayed from the constitution course. In the Dosso case, while following the trend the apex court sunk to new lows by inventing the doctrine of revolutionary legality and state necessity. In Nusrat Bhutto and Zafar Ali Shah cases, while denying relief to the petitioner, it gave to the respondents what they had not even asked for, going beyond its lawful mandate, when the Supreme Court allowed the usurpers of constitution the power to amend it. There has been no going back, the rest is, as they say, history.

If the Dred Scott decision (1857) by the US Supreme Court upheld slavery, our apex court was in soulful company when it upheld the imposition of martial law under the doctrine of revolutionary legality and state necessity thus placing the nation slavery of another kind. It took the people of US another hundred years to break the shackles; the people of Pakistan continue to suffer in its sixtieth year of existence.

Today, expectations from Pakistan's judiciary are unusually high because, firstly, it is one of the most influential institutions and, secondly, because of the renewed vigour it seems to enjoy after the restoration of the Chief Justice of Pakistan. But, will the judiciary help realise the dreams of the citizenry? To know the answer we have to wait and stay ready to come out in the streets if need be.

(The writer is a Lahore based lawyer)

 


Voice of the people
The assertiveness of Pakistan's newly independent media signals the return of a popular movement for democratic rights

By Adnan Rehmat

In the 'YouTube' world we live in, where political events unfold in real time, a single video clip can swing an election or provoke a revolution. In the US, it unseated Senator George Allen for name-calling a citizen of Indian origin, giving Democrats a one-vote majority in the Senate. In Tbilisi, Georgia, television coverage of the government's attempt to shut down a popular TV station brought tens of thousands of people into the streets, playing a major role in the 'Rose Revolution'. Pakistan is the latest country to teeter on the edge of a television revolution.

In the civilised world, media is considered as the unofficial (hence) 'fourth' pillar of the state. No less a person than Federal Law Minister of the Islamic Republic of Pakistan, Wasi Zafar, may think otherwise (hence reflecting the state of the 'state' and the state of state's denial) but it is in the changing nature, size and immediacy of impact that media in Pakistan, particularly real-time information provider -- private television -- is having on the national body politic that provides evidence in the affirmative.

Such has been the demonstrative power of media in influencing both the course and outcome of events in Pakistan lately that it is trumping two (legislative and executive) of the three traditional pillars of state (the other being judiciary). The gung-ho ascendancy of the media started with the eruption of the most serious crisis facing Pakistan's hitherto powerful General Pervez Musharraf. The political crisis was precipitated by his attempt to sack Chief Justice of Iftikhar Muhammad Chaudhry.

Live Crisis

Unlike Musharraf's 1999 coup and the military takeovers that preceded it in 1958 and 1977, the current crisis played out on live television, with independent satellite and cable television stations covering and broadcasting political unrest in the aftermath of the chief justice's attempted removal and in the face of a virulent government campaign of intimidation and police violence. The relentless TV coverage of the riots and the police repression escalated the crisis well beyond its original scope.

It started with a video clip on the state-owned Pakistan television that showed the uniformed Musharraf in a tasteless taunting of the chief justice and thereafter on private television of the rough public manhandling of the top judge by the police and intelligence officials. When independent TV stations broadcast the videos over and over again, thousands of lawyers joined in a spontaneous and unprecedented protest. The most dramatic incident came when police tried to close down Geo TV, one of the most popular news sources in the country. A posse of police ransacked the Geo TV offices in Islamabad, located just a few dozen yards from where most of the news media were encamped at the Supreme Court. Police lobbed tear gas into the building in an attempt to force everyone to leave, but outraged television journalists turned their cameras on the police and broadcast the melee live for tens of millions of people to watch. This was the first time in Pakistan's history that its citizens were able to witness political protest unfold in real time.

Debate Erupts

The unprovoked government attack on Geo TV and banning programmes and disturbing transmissions of other private TV channels escalated the protests against the firing of the chief justice and detonated a debate over freedom of expression and association, and broader civil rights. Such was the negative fallout of the government's intimidatory tactics that General Musharraf had to personally apologise on national television for the attack on Geo -- a first in his eight-year rule -- in an attempt to quell unrest. This, too, was replayed endlessly, dramatically acknowledging the emergence of independent media as a new and powerful force in Pakistan's political life. With the political parties largely emasculated by forced exiles and intimidation of their political leaders, Pakistan's young television broadcasters have taken over their role in mobilising the masses.

Ironically, it was Musharraf who allowed the reforms that opened up the airwaves for private ownership, back in 2002. A civil society and media movement had been fighting for media reform for years -- part of Pakistan's enduring political movements that support democratic rule. The liberalisation of the media, however, only came after the executive and military realised that millions of Pakistanis were watching Indian television by satellite instead of the martial programming on state television. Musharraf's 1999 Kargil fiasco -- mounting a military conflict in Indian-administered Kashmir -- was a turning point. With state-owned TV and radio telling them virtually nothing of the military's Kargil setbacks, Pakistanis instead got their news on satellite dishes from Indian TV channels, which beamed the military conflict live -- in a language (Hindi) that many Pakistanis understand.

Getting Primal With Media

With the media's expert articulation of popular sentiment on the chief justice issue showing no signs of abating, the executive and the military struck back by banning live coverage after the chief justice's epochal 25-hour march to Lahore and then the dramatic carnage of Karachi and a new ordinance was issued empowering Pakistan Electronic Media Regulatory Authority to exercise draconian measures to seal broadcast stations, seize equipment, arrest journalists, and to even notify further coercive regulations if necessary to shut up the media. This was the traditional pillar of the State -- the executive -- and the non-traditional pillar -- the military -- rolling back their own 'achievements' to open up the media.

While the media had passed with flying colours the first litmus test on the chief justice's issues -- defiance, independence and objectivity and laying bare official fiction characterising its role in informing the people -- it failed the second test, which came almost soon thereafter: the controversial and bloody Lal Masjid saga. True, the media's hands were tied as live coverage was banned but almost the entire articulation of the seminal event of the country's history -- the military gunning down women and men in the heart of capital Islamabad in its successful attempt to reclaim control of state-land on which stood the controversial mosque and madrasa -- was bereft of real information and balance. Only information that the executive and military provided was -- mostly uncontested -- broadcast onwards for consumption by a hungry citizenry as they sat glued to their television sets.

Missing The Story

In this instance, all channels were guilty of failing to ask hard and obvious questions and provide self-generated news features and human interest stories. Apart from umpteen talk shows, there was little offering available from the channels exclusive to their own efforts. No channel bothered to interview friends and class fellows of the central protagonist of the event -- Maulana Abdul Rashid Ghazi -- from his Quaid-e-Azam University days to try and chart how until few years ago a staunchly secular Ghazi turned religious and a militant, encouraging willful rebellion of the law by himself and his students.

No channel investigated the exact numbers of students of Jamia Hafsa madrasa -- invariably peddled between 1,000 and 4,500 -- when instead of peddling the government-provided figures the number could have been verified from the Wafaqul Madaris whose member Jamia Hafsa until a few months ago. The executive may have banned media from hospitals but in this age and time how difficult was it to smuggle oneself in as a patient or visitor armed with not a TV camera but a mobile phone which now ubiquitously come with built-in cameras to record and show not dead bodies and the injured but testimony that could helped give an idea of the numbers caught in a fight involving the executive and their former proteges.

There were no investigative features on the genesis of Jamia Hafsa to come up with answers to the as-yet unresolved conundrum that why would thousands of conservative parents from tribal areas, Northern Areas and North West Frontier Province -- regions themselves dotted by hundreds if not thousands of madrasas -- send their daughters to faraway Islamabad to a madrasa that would be promoted to test the waters of perhaps a new kind of conflict.

In short, whereas the case of the chief justice was one of the media spectacularly coming good on its expectations and influencing the formal pillars of the state as well as the unofficial -- the military -- in the case of the Lal Masjid episode, it was picture of conformity, seemingly allowing itself to the pressure of the state's might so soon after dramatically defying it. Indeed at one stage it seemed that the media was becoming part of the story (rather than reporting it) when one of the channels offered and maneuvered to become a platform for live negotiation between Maulana Ghazi and the state minister for information and broadcasting!

One More Litmus Test

However, the rise of the influence of the media on Pakistan's polity and as a formidable pillar of the State -- the apparent southward dive for the moment notwithstanding -- is hardly over. There is another multi-phased opportunity on the immediate horizon when media will get the chance to prove once and for all if the confidence in its massive potential to play its role of informing the citizenry -- as well as all other stakeholders -- is justifiably placed or it will be subsumed by the other pillars: elections, both General and general.

As not just the Pakistanis themselves but the international community balance their need for political stability in the strategically important country with the general desire for it to democratise, local and foreign policymakers must remain attuned to the independent media emerging as a powerful new player in Pakistan and support the nascent sector. Western foreign policy too often emphasises elections over other civil society institutions, especially open media, which are crucial to building stable democracies.

The emergence of independent media marks a turning point in the political evolution of Pakistan. Western news media have focused extensively on the question of whether Musharraf's undoing would result in religious fanatics seizing control of the state and its nuclear arsenal. The current political crisis demonstrates something far more important than the fate of a single individual. The assertiveness of Pakistan's newly independent media signals the return of a popular movement for democratic rights. Citizens are demanding respect for the rule of law, access to information and freedom of expression. The news from Pakistan is loud and clear: the media have emerged as the voice of the people.

 


Executive dominated
The executive today stands challenged by an assertive judiciary, a belligerent media, and civil society organisations that form large pressure groups

By Adnan Adil

 

Pakistan's all-powerful executive is under strain. It is losing authority to Islamic militants gathering force in northwestern areas bordering Afghanistan. An assertive and active higher judiciary is putting limits to the executive's authority and impinging on its hitherto unchallenged territory. An aggressive and fast expanding electronic media is bringing it under increasing scrutiny and public debate. Civil society organisations, largely supported by the western countries, have grown into a large pressure group making the executive answerable to its actions and getting its demands met through social action. A new system of governance is taking shape in the country with stresses and strains of formative years.

Since independence, Pakistan has been an executive-dominated state. It inherited a vice-regal system of governance inherited from the colonial British rulers which was retained with a few alterations. After the death of the Quaid in 1948 and soon after, in October 1951, the assassination of first prime minister Liaqat Ali Khan, the civil-military bureaucracy or the executive organ of the newly born state assumed all powers.

In 1954, the then Governor General Ghulam Muhammad, a 'kakezai' and accountant from Lahore, dismissed the first constituent assembly in collaboration with the military chief General Ayub Khan. The higher judiciary put its weight behind the establishment and under the doctrine of necessity a nexus was established between civil-military bureaucracy and higher judiciary.

This highly centralised executive-led state accepted the break-up of the country into two halves -- with the secession of East Pakistan as a new nation state -- but it did not compromise on its powers. The 1973 Constitution tried to bring in some power sharing between the executive and the elected members, but only in a few years' time this arrangement was wrapped up -- first with the suspension and later through alterations in the basic law on the whims of the civil-military bureaucracy. The Eighth Amendment and Seventeenth Amendment are two main symbols of the executive's assertion of its authority. This powerful executive has dismissed six assemblies starting from the constituent assembly, abrogated and suspended the Constitution on four occasions, hanged one prime minister and dismissed seven elected prime ministers.

Practically, one official party runs and monopolises the state of Pakistan -- the official party or the executive. It consists of senior civil bureaucracy, bureaucracy-controlled magistracy, police establishment, intelligence agencies and, on top of all military high command in GHQ. The sovereignty de facto lies with the military high command or corps commanders and not with the parliament as the Constitution reads on paper. This is the core executive that selects its collaborators among the civilians.

The core executive appoints president, prime minister, governors, chief justice, chief election commissioner, and auditor general. At the lower level the core executive appoints chief ministers of the provinces, ministers, nazims (mayors) of the districts and tehsils or taluqas. Elections are rigged, results doctored, and loyalties of the elected members are made to change through incentives or coercion to keep the system going.

As time passed, the military created more and more space for its domination by reducing the share of civil bureaucracy. In the name of devolution the provincial executive's powers were dispersed and some authority was delegated to district bureaucracy. District bureaucracy has been put under the control of nazims.

In the military-dominated system, civil services and civil administration have been weakened and their powers assumed by the military high command, its institutions like intelligence agencies and its nominated puppet civilians like nazims and civilian institutions like NRB. Civil bureaucracy is no more the thinktank of the government as it used to be in the past nor is it an effective organ to implement government's policies and enforce law and order. Rangers keep law and order in Karachi, lead operation against Baloch militants in Balochistan and the rebellious Lal Masjid militants in Islamabad. Thus, two major functions of the civil administration -- to work as a thinktank of the government and to implement its policies -- have largely been taken away from it and put in the hands of the military or people working under its supervision.

The objective of the so-called executive is not effective service delivery as is touted in the official propaganda. The military-dominated executive has created a district bureaucracy to perpetuate its rule and increase its wealth. The nominated (apparently elected in rigged and manipulated elections) district nazims and the officials working under his authority helps to provide some sort of political support to the establishment in Islamabad down to district and village levels. In return, the district officials are allowed to loot and plunder the public money at their disposal and extort public at large and interpret the laws and policies of the government according to their whims. They face no accountability for their illegal acts and no effective checks and balances is in place to check their highhandedness against the public.

In the tribal region bordering Afghanistan -- FATA -- the military took charge during the Afghan war and strengthened religious elements to fight against the Soviet forces in Afghanistan in the 1980s. These religious elements got so powerful that the authority of the traditional tribal leaders weakened. With this, the system of political agents that used to work in collaboration with the tribal elders stopped delivering and became ineffective. The intelligence agencies and the military directly intervened in the tribal region where now more than 80,000 troops are stationed to fight militancy where none used to be deployed. The state lost its control in the region and has lost its authority in the settled areas of the Frontier province bordering the tribal region.

The second big setback to the core executive's powers has come from the higher judiciary that -- with the backing of the legal community and the burgeoning civil society in the country -- asserted its independence by restoring its suspended chief justice. Justice Iftikhar Chaudhry's restoration by the apex court is a milestone in the sense that it has thrown a challenge to the all-powerful military-dominated establishment. The higher judiciary that used to legitimise the monopolisation of power by the establishment has now started to put limits on it. This has created a strain that is defining the course of the country's political and administrative history. It is to be seen whether the establishment accepts the new reality and adjusts itself by creating room for judiciary's activism or it takes the confrontational path with the imposing of emergency and the suspension of fundamental rights. It is hard to imagine an assertive and active judiciary in an authoritarian framework of governance as is the case in Pakistan.

An independent and rapidly growing electronic media, thanks to the communication revolution and globalisation, is yet another challenge to the establishment. The television channels and satellite technology have promoted political discourse and created an environment that is not conducive for military's domination or exclusion of elected representatives or marginalisation of the civil society. The core executive or establishment -- as it is called -- is facing a tough challenge and may have to retreat to accommodate the new realities.


Ordinance factory
The role of assemblies has been reduced to bare minimum by design

By Shahzada Irfan Ahmed

"We'll get General Musharraf elected as president in uniform a hundred times," is a statement that we have often heard, coming from ruling party parliamentarians many a time. This shows how independent and wary of constitutional responsibilities these legislators are. It's an open secret that the prime objective of legislators in our country has been to prove their allegiance to respective party leaders, even if it comes at the cost of their own self-respect and common man's interest.

In Pakistan, the role of assemblies has been reduced to bare minimum by design. Critics believe that the business of the house, both in the assembly and the senate, is held for the minimum possible days just to avert criticism against the state. The fact that Presidential Ordinances outnumber acts of the parliament by a vast margin also exposes the limitations of legislature in our country.

Quite interestingly, there is a full-fledged Parliamentary Affairs Division with a mandate to ensure smooth, effective and meaningful interaction between the government and the legislature. But, on ground, the division is as ineffective as one can think of. The division was first established in early 1950s during the premiership of late Khawaja Nazim-ud-Din. It ceased to exist during the years following the imposition of the 1958 Martial Law. It was re-established in July, 1962.

The Ministry of Parliamentary Affairs remained dormant during the period from October 12, 1999, to November 10, 2002. When elections were announced, the ministry started working in top gear in collaboration with the law division.

According to a report issued by the Islamabad based Centre for Peace and Development Initiatives (CDPI), Pakistan, during the Parliamentary Year 2005-06, the National Assembly of Pakistan had a total of 132 working days, which is barely 2 days more than the minimum constitutional requirement. In 2002-03 and 2003-04, the total number of working days was 131 days and 130 days respectively. Actual days of National Assembly sitting, however, were far less, as the working days are defined in a way to include any period, not exceeding 2 days, for which the National Assembly is adjourned.

The report adds that average actual working time of the National Assembly for each working day was about 2 hours per day. House was often adjourned without completing the daily business or after rushing through the assigned business without providing adequate time for consideration, discussion and debate.

The same report says that a large number of questions from members are killed by the secretariat while complaints about long delays in providing answers or about sketchy/wrong answers abound. It reflects the attitude whereby private member bills, especially the ones introduced by the members from the opposition parties, are generally not taken seriously by the government/treasury Benches.

Ahmed Bilal Mehboob, Executive Director, Pakistan Institute of Legislative Development and Transparency (PILDAT), tells TNS that he believes the legislature in Pakistan is totally independent and free. Being non-productive is a totally different thing, he adds.

Bilal says that many parliamentarians are not yet fully sensitised and equipped to perform their function properly. He says that contrary to expectations, the graduate assembly is not as productive as the previous ones were. The reason, he says, is that most of the veterans are out and many non-interested people are in just to retain their family seats.

According to Bilal, a discouraging fact is that the sitting assembly -- the 12th National Assembly of Pakistan -- could pass only 41 laws in its first four years as compared to 73 ordinances passed by one person -- the president. He says this is in great contrast to India where the Lok Sabha has passed 216 laws during the same period compared to the 28 ordinances passed by their president.

Mukhtar Ahmed Ali, Executive Director CPDI, tells TNS that it's a pity that very little business is carried out in the house. Though the assemblies and senate meet the minimum requirement of holding sessions for at least 130 days in a year, the average time spent in the house is between two to three hours. Barring the budget session, the parliaments hardly spend more than 5 hours a day in the house.

Mukhtar says his observation is that many parliamentarians themselves want to avoid longer sessions. They fear their weaknesses will be exposed in case they have to speak on any issue(s), he says. Such members who have never uttered a single word in the assembly are in majority, Mukhtar says.

He is not ready to believe that the legislature in our country is independent. If it were, the private members' bills and questions posed by legislators would never have met a sorry fate. He says only those laws are taken up for discussions that are purely in the interest of the government or the parliamentarians themselves. Those laws that are in greater public interest are never discussed, he says.

Explaining his point, he says a law as important as Human Tissues and Organs Transplant Ordinance, 2007 was promulgated only after the Supreme Court of Pakistan intervened. The court made an observation that state-friendly ordinances could be passed on a half hour's notice whereas those in public interest would take ages to take shape.

On the other hand, laws related to perks and privileges of the legislators are discussed every now and then. He says the amended Police Order 2002 was promulgated in November 2004 but has not yet been presented for debate in the parliament. The ordinance is re-promulgated after the expiry of every four months, whereas the proper way would have been to get it passed under an act of the parliament. Similarly, the Official Secrets Act of 1923, passed by the British after World War II has never been taken up for discussion by the parliament.

 

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