Wednesday, February 27, 2008

HRCP calls for prompt change of regime

Lahore, February 25: While welcoming the people's verdict of February 18, the Human Rights Commission of Pakistan (HRCP) has demanded immediate convening of the newly elected National and Provincial Assemblies and transfer of power to majority parties / coalitions so that the peoples' wishes for a change in the Presidency and restoration of judges could be expeditiously addressed. In a statement issued here today, HRCP said:

The Human Rights Commission of Pakistan (HRCP) welcomes the people's verdict of February 18 and felicitates them on foiling the designs of the various elements that wanted to interfere with the electoral process through threats of violence, illicit influence, blackmail and bribery. This does not affect HRCP's censure of large-scale manipulation of the electoral process before the polling day and the Election Commission's failure to rise to the minimum acceptable standards of efficiency and respect for democratic imperatives. But these matters, as well as irregularities noticed during and after the polling, will be taken up in due course. At the moment all attention needs to be devoted to the possibility of transition to democratic and responsible governance created by the election result, and more importantly by the acceptance of this result by the people as well as all political groups, including those who boycotted the polls.

There is no doubt that the people have not only voted against the erstwhile ruling party, they have in effect rejected the 9-year-old regime, its performance and its presiding deity. A sincere acceptance of the election result leaves President Musharraf with no option except his withdrawal from political scene. Even if the argument that he has been elected in accordance with law (as amended by himself) is taken seriously, it can be said that his election has been superseded by a broader-based election. The disclosure of General Musharraf's involvement with poll-rigging in the 2002 election by Maj-Gen. Ehtisham Zamir, a former head of the ISI's political cell, has not only strengthened the case for an immediate disbandment of this cell but has made the position of the incumbent head of state much more untenable than ever. HRCP sees no force in the plea against a change in the presidency on the ground that it might affect the war on terror. Indeed the restoration of decision-making powers to popularly elected representatives and their parliament will lend the state actions legitimacy and strength both and the performance of the armed forces in this area also should improve when they realize the importance of democratic sanction for their operations. Above all, resistance to change in the presidency will pollute the political environment, embolden anti-democratic professionals to undermine the national consensus people's and create unwarranted obstacles to the resumption of the democratic journey.

In order to speedily conclude the electoral process it is essential that the new National Assembly and the Provincial Assemblies must be convened as early as feasible as any undue delay will amount to a defiance of the popular will. The many crises Pakistan faces demand the earliest possible transfer of power to the newly elected representatives of the people. The issues at the top of the national agenda – restoration of the judges with due guarantees of the independence of the judiciary, removal of the provinces' grievances against the centre, rationalization of the campaign against militants and extremists – must be addressed sooner rather than later.
Further, there is no gainsaying that any tendency to put the common citizens aspirations for bread, job, and a decent living – on the back burner will undo the recent gains by democracy and cause dangerous frustration to the masses.

Finally, HRCP wishes to hail the beginning of the end of the people's alienation from policies and hopes that the country's principal parties will help this trend by establishing rule by as large a democratic consensus as possible.

Iqbal Haider
Secretary General

Asma Jahangir

Power Construct and Leadership Demands

Nasim Zehra
(Harvard Crimson)

One, the balance of power in Pakistan's power construct has greatly shifted towards elements that constitute Constitutional democracy. The elements include political legitimacy, popular vote, independent judiciary, constitutionally granted public and state authority, elected offices and independent media. The March 9 2007 lawyers and citizens resistance marked the beginning of this shift, the results of the February 18 election exhibited the shift and the February elected parties alliance reinforced this shift. A corollary of this shift has also been the weakening of the Extra-Constitutional forces functioning outside of the parameters of the original Constitutions.

Two, as a consequence of this shift balance of power three elements operating supra-Constitutionally or with the help of supra Constitutional authorities have either been considerably weakened or have retracted from the extra Constitutional spaces they occupied. First the army which has institutionally begun to retrace its steps towards its constitutional role; second the former general now Parvez Musharraf's political authority and his time as the all authoritative supra-constitutional figure is up and third PML-Q created and patronized by general Parvez Musharraf and the agencies has been trounced at the polls. Also reportedly PML-Q's elected members of the Senate, national and provincial assemblies are busy forming forward blocs.

Three, the president's vastly diminished or vanished political authority has incapacitated him administratively to take any step to challenge the authority of the elected parliament. With the legitimate political ascendance of the elected parliamentary forces the president cannot use the Constitutional powers he acquired since 1999 through Ordinances and Constitutional amendments. With the army's obvious inclination to steer clear of politics retired general Musharraf, holding a controversial presidential position, has no cards with which to begin another round of power contest between the popularly elected parliamentary forces and the Vice-regal forces.

Four, the joint movement of Pakistan's major parliamentary forces towards Constitutional democracy greatly reduces the ability of agencies and the GHQ to puppeteer a new anti-democracy play. At this juncture of Pakistan's political history as genuine political forces work together according to consensus-based 'rules of the game' no IJI or MMA can be created. With PPP having wisely given a stake to all elected forces in a new setup and with PML-N determined to only play the democratic game, there are no politicians willing to play the B team for the presidency. Even the 93 independent parliamentarians voted into the national and provincial assemblies are looking towards the winning parties not the presidency.

Five, the emergence of lawyers-led organized and determined citizens' groups which seek accountable exercise of State and government power and demanding restoration of the pre-November 3 judiciary is significant. It has contributed to the creation of an effective democratic deterrence against the unhindered functioning of supra Constitutional forces within Pakistan's political space. The media, popular political forces and overseas Pakistanis have been a key element in this uniquely evolving Pakistani democratic deterrence. This democratic deterrence has worked to prevent the widespread rigging planned for the Election Day, as even conceded by Pakistan's Attorney-general in his telephone conversation. It was this democratic deterrence that also forced general Musharraf to roll back whatever plans he had made in November for imposition of a longer term emergency, postponement of elections and squashing media freedom. Washington had no choice but to acknowledge the emergence of this democratic deterrence against extra Constitutional forces and also seek an early end to emergency.

Six, Pakistan's power parliamentary forces appear relatively more capable of resisting external pressure keen to influence Pakistan's political future and the power scene. For example Washington's advice to PPP to keep the "Islamist" Nawaz Sharif out of a future ruling coalition and to the elected parliamentarians on not insisting upon the restoration of the pre-November 3 judiciary, was not adhered to. Similarly Washington's advise that the elected parties work with president Musharraf and US president's phone call of support to president Musharraf will not greatly alter the way various political leaders view president Musharraf.

Seven, the Musharraf era is over yet his political future and exit scenario is dependant on his personal decision, on the parliament's decisions and the street factor. Were the president not honor his own promise of respecting the public's verdict on his political future or the thumping failure of his eight year long political experiment and not resign then the politicians have the option to use their parliamentary strength to weaken him. As the PPP leader Amin Faheem has already stated that if the president were to get a vote of confidence from the new assembly his party can work with him. However the likelihood of a vote of confidence seems very unlikely. Some political forces within and outside of the parliament will continue to demand Musharraf's exit. His moral authority to stay on ended the day the people defeated his political party.

Eight, the struggle for the restoration of the pre-November 3 judiciary has greatly contributed to strengthening the struggle for rule of law in Pakistan. Whatever the public articulation of the PPP there is clear agreement between the PPP and the PML-N that restoration of the judiciary is a priority item for the two. However with various opinions on how the restoration can Constitutionally take place an immediate Task Force on Restoration of the Judiciary will have to be immediately set up to give specific recommendations on what is the quickest and the most effective way forward on this. While the lawyers' movement and the broader street strength gathered on the restoration matter will continue to exercise pressure on the parliamentarians, the elected political leadership cannot take any outside of a wisely guided consensus position evolved by a Task Force. Setting deadlines for restoration is an unwise approach but keeping the politicians on their toes through political pressure is needed.

These factors make for a clear and demanding path to a genuinely democratic Pakistan. Key issues including the president's future and the restoration of the judges need to be resolved. Instant resolutions may not be available. Patience without detouring from the Constitutional path is essential. Pakistan is transiting from a khaki-led quasi-democracy towards a genuine Constitutional democracy. Power realignments are taking place and we stand at the edge of a new democratic dawn. The democratic forces are ascendant but not quite rooted yet. The democratic process has begun but the return of Constitutional authority to the elected parliament has yet to begin. This is a hopeful yet precarious period. The challenge for Pakistan's parliamentary forces is to convert this shift in Pakistan's power construct into permanent ascendancy of the parliament in accordance with Pakistan's 1973 Constitution. It is time for responsible and thoughtful action not reactive behavior. The objective of the ascendancy of the parliament, of an independent judiciary and the presence of a consensus president are largely shared by the overwhelming majority of the elected forces. All elected political leadership and energy must be geared towards achieving these objectives remaining within the discipline of the Constitutional parameters and the confines of the parliament. All eyes are on the two key parties the PPP and the PML-N and also on important regional parties including the ANP and the MQM. Only jointly can they successfully respond to the many challenges- economic, political, internal security, distributive justice and foreign policy- that confront Pakistan.

Road to restoration

Zahid F Ebrahim
The News op-ed
Wednesday, February 27, 2008
The newly elected parliamentarians are searching for a method to restore the pre-Nov 3 judiciary and fulfil the mandate given to them by the people of Pakistan. Those who have been rejected by the electorate claim it cannot happen without a two-thirds majority inparliament. President Pervez Musharraf has claimed that the present courts are a fait accompli and that there is no legal basis to restore the pre-Nov 3 judiciary.
However, the road to restoring the pre-Nov 3 judiciary requires no legal underpass or any constitutional flyover. It does not require a two-thirds majority in parliament to amend the Constitution as the president's men claim, nor even a simple-majority resolution by the newly elected representatives. It requires only the will to perform our constitutional duty.
On Nov 3, 2007, the Government of Pakistan, starting from its president and down to the faceless police officers manning the barricades in the Judicial Colony in Islamabad, have acted in violation of their constitutional duty. Article 190 of theConstitution says: "All executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court of Pakistan." Yet, since Nov 3, the Government of Pakistan has refused to act in aid of the Supreme Court. In fact, the executive authority of the country has acted, in open defiance, to subvert and strangulate the apex court.
In the late afternoon of Nov 3 news broke that President Musharraf hads uspended the Constitution by a so-called Proclamation of Emergency and arrogated to himself the right to amend the Constitution as he pleased and the authority to dismiss the judges of the superior courtsof the country as it suited his fancy. This action, as the president himself boasted as being unconstitutional, was not entirely unexpected. Apprehending such an illegal act, an application had been filed in the Supreme Court on Nov 2 by the lawyers, challenging the president's election.
Within hours of the issuance of the PCO, a seven-member bench of the Supreme Court, led by the chief justice passed an order that changed the course of history. The bench ordered that "[the] government has no grounds/reasons to take extra- constitutional steps," and proceeded to restrain president Musharraf and Prime Minister Shaukat Aziz from"undertaking any such action which is contrary to the independence of the judiciary." The Supreme Court restrained Pakistan's "Civil and Military authorities…[from] acting on the PCO" and held that "no Judge of the Supreme Court or the High Courts chief justice(s) shall take oath under the PCO…"
For the first time in Pakistan's judicial history, the majority of its Superior Court judges resisted a coup d'etat. However, the executive authority refused to come in aid of the Supreme Court. In gross violation of its constitutional duty, the executive authority detainedthe judges and obstructed them from carrying out their judicial duties.
After passing the order on Nov 3 suspending the PCO and other unconstitutional actions of President Musharraf, the Supreme Court bench directed that the case be put up before the full court on Nov 5. But on Nov 5, the judges of Pakistan were under illegal detention.
On the road to restoration, the path before the newly electedgovernment is remarkably simple. After taking oath of office, the new prime minister must pick up the phone and direct the local administration in Islamabad and the four provincial capitals to act in aid of the order passed by the Supreme Court of Pakistan on Nov 3.
Consequently, the barricades in the Judicial Colony Islamabad will be removed and the illegal restraints on the chief justice and other judges will be lifted. Chief Justice Iftikhar M Chaudhry and other honourable judges will be driven to the Supreme Court building and escorted to their chambers and their courts. This simple directive will be repeated in the four provincial High Courts. Thus, the judiciary of Pakistan will stand restored. The mandate given to the newly elected representatives by the people will stand fulfilled.
There are, of course, complex questions of law for lawyers to mull over. What will be the consequences, if any, for those individuals who violated the order of the Supreme Court dated Nov 3? What will be the status of those individuals who have taken oath in violation of the Supreme Court's order? What will be the legal effect, if any, of proceedings taken in various courts after Nov 3? These questions cannot be answered by the newly elected parliament. These questions can only be answered by the restored Supreme Court of Pakistan.
One last question which plagues all discussion on the issue of the restoration of the judiciary is what will happen to President Musharraf? Well, the restored Supreme Court will resume its hearing of Justice Wajihuddin's petition challenging the eligibility of Mr Musharraf to contest the presidential election. The Supreme Court will decide the fate of Mr Musharraf in accordance with the law, and not the opinion of Condoleezza Rice.
All seemingly complex and convoluted constitutional absurdities will stand resolved if the newly elected government performs its constitutional duty and acts in aid of the Supreme Court's Order dated Nov 3, 2007. That is the road to the restoration of the judiciary.

'Simple order, not two-third majority needed to restore pre-PCO judiciary'

By Urooj Zia
Karachi. The News, Monday, February 18, 2008: The Constitution of 1973 stood restored the moment the Emergency waslifted, and the only thing that the next parliament has to do isrestore the pre-PCO judiciary via a simple order, as opposed to apopular conception about needing a two-third parliamentary majorityfor the purpose. This has been the position taken by at least fourformer chief justices of Pakistan, including Justice (Retd)Bhagwandas, former president of the Supreme Court Bar Association(SCBA), Munir A. Malik, said Sunday.
He was speaking at an event organised at The Second Floor (t2f), wherea high court advocate, Faisal Siddiqui, interviewed him. This wasfollowed by a detailed question-and-answer session after the floor wasopened to the public.
Prior to taking up the leadership of the current lawyers' movement,Malik has been known to participate in a number of agitations,including those against the war in Vietnam while he was a student inthe US. He has also been actively involved in bar association politicsin Pakistan, especially that at the lower court level. He never joineda political party, however, and spent most of his career with theKarachi Bar Association (KBA), with what Siddiqui referred to as the"masses of lawyers." The reason for this, Malik said, was because onehas to start from the beginning, and the KBA, as the lowest level ofbar association of politics, was the beginning for the former SCBApresident. "When I was 18, I thought I'd conquered the world, when Iwas 19, I realised that the conquering was only half-done. By the timeI was 24, I realised that I had to start from the very basics," hesaid candidly.
Substantially there is no difference between the movements during theformer military dictator, General Ziaul Haq's regime, and the movementagainst the current military dictator, General (Retd) PervezMusharraf, Malik said. "Both are movements for the supremacy of theConstitution, and the supremacy of the rule of law," he said."Tactically however, both movements are different. The majordifference has been brought about by the communications age. The mediahas played a major role in the current movement."
"During Ziaul Haq's time, word of what happened with us on M.A. JinnahRoad would not reach Nazimabad until around three days later," Maliksaid. "Now however, what happens in a remote area of Sahiwal becomesnews all over the world."
Malik sees himself as a normal, everyday person, doing his duty as acitizen. "I'm so glad I'm not abnormal like Musharraf," he said,amidst cheers and applause from the audience. "I'm not a revolutionaryeither. I share the ideals of the left – they were romantic ideals,and the politics of the left attracted me. The world has changedhowever, and I believe in change. Marxism has changed. I subscribe tothe ideals of the left, the concept of a welfare state, verypassionately."
The first lawyers' movement under the current regime came forward in2002, when 32 amendments were made to the Constitution via the LegalFramework Ordinance (LFO). The leaders of the current movement,including Malik and Ali Ahmed Kurd, led an agitation against the LFO,and the ordinance was withdrawn after being in place for 16 months(August 2002 to December 2003). That movement, however, did nottransform into the mass-based mobilisation that the current movementis, Siddiqui said.
"We have to realise that lawyers don't write the Constitution, and atthat time [in 2002] we ran the risk of being accused of going againsta particular individual, not the idea behind the individual," Maliksaid. "The best way to get through to the masses was to pose afundamental question in front of them: did they get justice in thiscountry in 60 years? By the time March 9 came around, we were able toexplain to people that bonded labour and practices such as vani andswara were still in place, that land in Gwadar was being sold togenerals like it was someone's personal fiefdom, that the armed forceshad permeated every facet of civil life, that despite the fact thatthis is the age of privatisation, you don't sell family silver forpeanuts," Malik said. "The slogan of the current movement was'justice.' And justice is possible only when everyone is equal beforethe law – an equality that is guaranteed in the Constitution."
"We explained to people that their money had been used to set up thebiggest commercial enterprise in Pakistan – the GHQ. The success ofthe current movement lies in the fact that this time around we wereable to connect to the masses, and change mindsets," Malik said.
The citizens of Pakistan had, due to the remnants of colonialmindsets, learnt obedience at the cost of liberty. The currentmovement, Malik said, changed that. "Politicians were taught that theshortest route to Islamabad is not through Washington or Riyadh, butthrough Pindi, Lahore and Quetta, etc. There was resentment boilingunder the skins of people. Through this movement, we channelised thatinto a positive direction," he said.
Another fundamental difference between the post-March 9 lawyers'movement, and the agitation against the LFO, is that the former hasthe support of the "masses of lawyers," or as Siddiqui put it, thismovement has "captured the imaginations of the entire lawyers'community." Malik explained how this had happened. "The rank and fileof lawyers is divided into the 'haves' and the have-nots.' The formerrule over and oppress the latter. When the CJP, Justice IftikharMuhammad Chaudhry, stood up to the regime and refused to resign, herebelled against authority and became an icon for the younger,oppressed lawyers. "They are the ones providing strength to themovement," Malik said.
He spoke about one incident that took place post-March 9 in Sahiwal.Lawyers there had organised a rally where they were walking whilecarrying candles. Police contingents stopped them en route and dousedthem and their candles in petrol. Around 33 lawyers were seriouslyburnt, "but even this did not stop them," Malik said.
The aim of the current movement is to ensure that every judge in thecountry should be able to say 'no' to the executive if he or she seesa judgement that goes against his or her conscience. The other aim isto send the army back to the barracks.
The lawyers had called for a proactive boycott of the elections,rather than a passive boycott, Malik said. The main thing thatpolitical parties that come to power after these elections is torestore the pre-PCO independent judiciary. "If you want to removeArticle 58-2 (b), you have to go to court. And whether you want to goto Dogar's court or Iftikhar Chaudhry's court, is your choice," Maliksaid. "A man can only be free if he wants to be free."
If the new parliament restores the pre-PCO judiciary, the short termgoals of the lawyers' movement will prevail within the next couple ofweeks. If the judiciary is not restored however, the movement willdrag on, but it won't stop or die down, Malik said, adding that peoplereally had nothing to be afraid of by participating in the currentmovement. "You have nothing to fear but fear itself."

People's Resistance welcomes election results, condemns blatant

Karachi, Feb 22, 2008: While welcoming the results of the generalelections of February 18, the People's Resistance noted that theoverall results came about despite massive pre-poll manipulation inthe form of compromising the independence of judiciary and media,illegal transfers and postings, and an incomplete and flawed electoralroll. PR also strongly condemned the widespread rigging itself thatmarked the February 18 polls in Karachi and called for action againstthose involved in the manipulation of votes cast that day.
Independent reports confirm overstuffing of ballot boxes, highervolume of votes despite low turnout, harassment at the pollingstations, voting without ID card, absence of voters' names on theelectoral list and the overwhelming presence of a certain party'sworkers across a large number of polling stations in the city.According to one report, some polling stations registered 140% votersturnout despite a low turnout generally witnessed in the city.
Peoples Resistance has many individual testimonies complaining ofharassment, rigging and being coerced to vote in a certain party'sfavour. Voters complained that their ballot papers were alreadystamped on the 'kite' symbol, that they were not provided privacy atthe polling booths that the presiding officers themselves asked votersto stamp the 'kite' symbol. Many gave in to the presiding officers'coercion, afraid to risk a confrontation, especially in theoverwhelming presence of the party's activists at the polling booths.Voters also complained that they were handed over up to 50 ballotpapers to stamp against their ID cards. "I was asked to stamp the kitesymbol on all of them," said one voter.
A Karachi-based party's victory by huge margin also raises questionsabout the transparency of the polling process. There have been reportsof the Party getting 65,000 votes from areas where it had earlierreceived not more than 4,000 votes. Not surprisingly, their opponentshave challenged the results of a number of constituencies, including:NA-241, 249, 250 and 253, and PS-92, 110, 111, 112, 126 and 127.
Terming these irregularities as a mockery of an importantconstitutional exercise, the People's Resistance said that thewidespread rigging reported from Karachi puts into question thecredibility of these results. We condemn blatant harassment of voterswho were bullied into voting for a certain party while theadministration provided no protection against such coercion.
PR also denounced the administration's inefficiency that added to thevoters' miseries. Voters complained of their names missing from thevoters list even though they had registered their names earlier. Theywere made to run between different polling stations and misguided bypresiding officers adding to their difficulties.
PR called for action against biased presiding officers who werewitnessed stamping the ballot papers. "Presiding officers abused theirpower and authority. Instead of facilitating voters, they harassedvoters and did the bidding for one political party, which is aviolation of the EC's code of conduct," said a PR statement.
PR said that the hijacking of Feb 18 polls has shaken the public'strust in this important democratic exercise. Despite security threats,the public came out to cast their votes because they saw the Feb 18polls as a hope for a democratic transition. Those who attemptedrigging on polling day challenged public's constitutional right tomake its choice. These elements must be brought to book. Disputedconstituencies must have a re-election since elections in thoseconstituencies violated all electoral rules and their non-transparentresults cannot be accepted.