By Ahmed Nadeem Gahla
A study of transformation from military dictatorship to democracy around the world would reveal that there are two possible ways. Either it is achieved through a popular revolution or by negotiations between political forces and dictators.
The former invariably demolishes the entire system and mostly involves bloodshed putting a new system in place while the later allows the change to happen within the prevailing system based upon certain negotiated terms.
These terms might not necessarily meet the international laws and judicial norms as it is always a middle path.
The return of democracy in Pakistan after a long period of military dictatorship is a unique example of such ‘negotiated change’. The terms reached with the help of international power brokers and guarantors ensured withdrawal of politically motivated cases, return of exiled leadership and shedding of uniform by Parvez Musharraf in return for re-election. After assassination of Benazir Bhutto, the international and domestic pressure became so immense that Parvez Musharraf not only have to accept the condition of fair elections but also have to negotiate for an exit in return for protection from prosecution for unconstitutional actions. A civilian dictator might not get such a deal.
Another option available to political forces at that time was to over through dictatorship by a popular revolution. Let us not forgets that the world community would not allow a nuclear armed nation to reach the point of bloody revolution. Especially, when there are more chances of falling in to a civil war hijacked by religious extremists than overthrowing a dictator. Without a negotiated change, how popular a movement might, it is not possible to remove a military backed dictator without bloodshed. We have witnessed the return of former Prime Minister Nawaz Sharif from exile, who came back in violation of deal reached on guarantees of our ‘friends’ in Middle East and was sent back by next flight. Despite the promises of a million people’s reception by right wing parties, not a dozen were able to break the security arrangements and show up at airport to receive their leader. Even after Nawaz Sharif was forcibly deported to Saudi Arabia, establishment successfully countered public reaction avoiding any law and order situation. Obviously, possibilities of overthrowing dictator’s thorough protests are not that bright.
Unable to fight the powerful military establishment which has far more guns and tanks on their disposal, negotiating was the only option available to Benazir Bhutto. Much debated and controversial National Reconciliation Ordinance (NRO) promulgated by former dictator Parvez Musharraf paved way for return of Benazir Bhutto and later for Mian Nawaz Sharif, without the fear of being arrested or deported. The cases withdrawn against Benazir Bhutto and her husband Asif Ali Zardari under NRO were registered during regime of former prime minister Mian Nawaz Sharif and remained unproved during lengthy trial and detention of Asif Ali Zardari for eleven years. Both Mian Nawaz Sharif and Saif ur Rehman, the former head of National Accountability Bureau appointed by him have repeatedly confessed that these cases were false and cooked on pressure of establishment which wanted to malign the name of Benazir Bhutto and her family. How big price it is to move towards a democratic process by withdrawing these fabricated cases?
This fact alone leaves no space for political leadership to avoid its responsibility of revoking these politically motivated cases through parliamentary legislation. Mr Sharif and MQM should have taken a bolder stand in parliament while they have repeatedly expressed in public that these cases are false. However, the political leadership is trying to avoid their responsibility to please the establishment, thus pushing the matter of NRO to superior judiciary to decide. Superior courts around the world avoid interfering in to political matters despite having jurisdiction over such issues under the ‘political question doctrine.’ The purpose of this self imposed restriction is to distinguish the role of judiciary from those of the legislature and the executive. Political questions include the ratification of constitutional amendments, conduct of foreign policy and administrative actions of governments. However there is no ridged rule and a court might choose to go ahead in case the ‘demands for a fair trial and criminal justice outweighed the political question doctrine’ as ruled by a US Federal Court in case of President Richards Nixon.
The exception set in Richard Nixon case is widely referred to and abused to neutralize the political rivals in dictatorships and developing democracies where establishments use superior judiciary as a tool to further their own agendas.
The superior judiciary in Pakistan has been a victim of this power game by dictators and political leadership on cost of its integrity and reputation. Judiciary has lost a lot in terms of legitimacy of its decisions while playing power game, from the death sentence of ZA Bhutto being the worst and unrecoverable stigma on its face to providing cover to unconstitutional takeover of Parvez Musharraf. The same superior judiciary in offices today miserably failed to dispense justice to Asif Ali Zardari in eleven long years and convicted Mian Nawaz Sharif under establishment’s pressure. With restoration of Chief Justice and sacked judges through a popular movement, the judiciary has won its independence but its impartiality is still to be tested. Should judiciary once again be dragged to deliver political decisions while political leadership lacks the courage to take bold stand on its publically confessed mistakes of past?
It might not be out of context to mention that first Prime Minister of Pakistan from Sindh was assassinated in Punjab and those in establishment involved in cover up of his murder were blessed with huge estates. ZA Bhutto, the second Prime Minister from same province, was assassinated through a judicial verdict. The third and fourth Prime Ministers Muhammad Khan Junejo and Benazir Bhutto respectively, were unconstitutionally sacked and could not get justice from superior judiciary. Once again the superior judiciary is being dragged in to power game to remove President Zardari from the office for which he has been elected with overwhelming majority from four Provincial Assemblies, the National Assembly and the Senate. The plan to extract a political decision on technical grounds to remove an elected President is not going to strengthen the institution of judiciary or democracy. Especially when the necessary link of ‘demands for a fair trial and criminal justice outweighed the political question doctrine’ as set in Richard Nixon’s case is missing in NRO after confessions of Mr. Sharif and Saif ur Rehman. Will court call Mr Sharif and record his statement while deciding the NRO, and if not, what would be the legitimacy of such decision?
Apart from the outcome of political circus to be staged in superior judiciary, those advising President Zardari to face courts have to realize the fact that he was in continuous imprisonment for eleven years.
His detention is longer than the period of life imprisonment in Pakistan. Even if convicted in cases against him the sentence would have been lesser than imprisonment already undergone by Mr Zardari.
Although according to the judgments of superior judiciary under section 497 of CRPC, any person who is under detention for more than two years and whose trial is not concluded would become entitled to bail. The very same relief of bail was not extended to President Zardari for eleven long years by the superior judiciary. Under the Criminal Laws of Pakistan, if prosecution fails to bring sufficient evidence against accused for a reasonably long period of time, the accused has a right to request the court to drop charges. Mr Zardari’s applications before superior courts for that relief also failed to earn him justice in eleven year. Should not people have reservations that Mr. Zardari will get justice this time from judiciary while even today most of the judges in chair are the same who were unable to dispense justice to him in past?
Even after restoration of Judges, several questions are being raised about its performance even by leadership of the lawyer’s movement. While Mr. Sharif and Altaf Hussain has advised President Zardari to face the courts, both leaders are reluctant to welcome the decision in Roedad Khan’s petition for ISI’s money politics and a judicial enquiry in to 12th May’s massacre respectively. There is a prescribed process for removal of elected President in constitution, if political leadership thinks that Mr. Zardari is either ineligible or unfit for the job, it should resort to constitutional remedy through impeachment motion. Once again, dragging judiciary in to power game would be an unpleasant and undesired burden for institution which still has to go through the test of impartiality and establish its lost credibility. While all other institutions have been deteriorated to core during long dictatorships, the only hope left for people is institution of judiciary, restored after long and tough struggle.
If political leadership once again falls in to establishment’s trap to extract political decision from court, the scars on national unity and institutional integrity might be deeper than we do afford as a nation state.