An Unpleasantry of Necessities

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By Stig Toft Madsen, Senior researcher at NIAS

2007 has been an eventful year in Pakistani politics. Three major political forces – the military, the political parties and the Islamists – have repeatedly engaged each other as friends or as foes. Because the Pakistani political landscape is so volatile, the judiciary has repeatedly been called into play to legitimize or de-legitimize political acts.

In July, when the Supreme Court ruled against the dismissal of the Chief Justice by Presidential fiat, it momentarily seemed as if the judiciary was gaining the upper hand vis-à-vis the executive and the military. The judiciary has been subject to much bullying by both military and civilian rulers (and to outright murder by Islamists) in this corner of the Indian subcontinent. Its reemergence as the arbiter of constitutional norms and principles could spell a major breakthrough. However, pat came a Supreme Court ruling allowing President Musharraf to seek re-election as President while still in uniform. This judgement was followed by another on October 5th confirming the go-ahead for Presidential elections. The elections were held on October 6th with General Musharraf winning a “landslide” victory.

Meanwhile, Musharraf and Benazir Bhutto almost sealed a long-awaited deal allowing Benazir Bhutto to return to Pakistan to run for the post as Prime Minister in the scheduled national elections. Insisting that cases pending against her and her husband be dropped before she would return, Benazir upped the ante in nightlong negotiations demanding that all cases be dropped against all politicians irrespective of party affiliation for the period 1986 to October 1999 when Nawaz Sharif was deposed. Musharraf acceded to this demand. On October 5, he promoted a National Reconciliation Order granting politicians what one commentator has termed “a licence to loot”.

The deal between Benazir Bhutto and Musharraf goes to show how far these two religiously moderate political leaders are willing to go in order to patch together an alternative to the Islamist parties. Since her father was hanged under General Zia ul Haq, Benazir has projected herself as the democratic alternative to military rule, while Musharraf for his part has projected himself as the necessary military alternative to corrupt politicians such as Benazir Bhutto. Now the two foes are coming together to give shape to an enlightened moderate form of Islam. If the deal has been subject to hard bargaining for several months, this shows how difficult it is for the military and the political parties to agree to a power-sharing formula between an elected Prime Minister and a President backed by the military. The duumvirate is likely to prove fragile.

The deal also goes to show how difficult it is for the military to find an “honorable exit” for its Chief of Army Staff cum President. Previous military dictators in Pakistan have exited either due to ill health (Ayub Khan), the loss of territory (Yahya Khan), or fatal accident/assassination (Zia ul Haq). Musharraf is the first coup general trying to try to exit slowly and honorably.

Recent events show that key institutions are still poorly rooted. To outside observers and Pakistanis alike, high politics seems to allow and demand unlimited contestation and manipulation. This state of affairs has deeply affected the judiciary. Witness the tailormade President to Hold Another Office Act of 2004 which states that, “The holder of the office of the President of Pakistan may, in addition to his office, hold the office of the Chief of the Army Staff” …. Provided that this provision shall be valid only of the present holder of the office of the President” (www.pakistani.org/pakistan/constitution/).

Or witness the brand new ordinance which states in section 33A that “Notwithstanding anything contained in this Ordinance or any other law for the time being in force, proceedings under investigation or pending in any court including a High Court and the Supreme Court of Pakistan initiated by or on a reference by the National Accountability Bureau inside or outside Pakistan including proceedings continued under section 33, requests for mutual assistance and civil party to proceedings initiated by the Federal Government before the 12th day of October, 1999 against holders of public office stand withdrawn and terminated with immediate effect and such holders of public office shall also not be liable to any action in future as well under this Ordinance for acts having been done in good faith before the said date”(www.pakistani.org/pakistan/legislation/2007/NationalReconciliationOrdinance.html). Considering the many and varied allegations of corruption raised against Benazir Bhutto, Nawaz Sharif and other politicians, the largesse shown to them seems overwhelming.

With such acts and ordinances on the book, it is hardly surprising that the Pakistani higher judiciary has to take recourse to its early legal invention, i.e. the “doctrine of necessity”, which in effect states that necessity makes the illegal legal. If need be, everything goes.

If ever there was a post-modern paradise on earth, it is this, it is this, it is this!

An Unpleasantry of Necessities
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