Ruling by ambivalence

The writer is a lawyer based in Islamabad. He is a Rhodes scholar and has an LL.M from Harvard Law School

“Due to the energy crisis, load shedding and high cost of electricity, the light at the end of the tunnel has been turned off… We apologise for the inconvenience.” This text message that recently did the rounds in Pakistan highlights the sense of humour of our nation, but also the hopelessness escalating at an alarming pace. In confessing his government’s impotence in face of skyrocketing oil and food prices, Prime Minister Yusuf Raza Gilani was probably being candid. In the immediate term there isn’t an awful lot the government of a country as broke as ours can do to shield its citizens against the global spate of inflation that has distressed consumers even in the richest countries across the globe. But the economy and the spirit of this nation is being choking as much by the forbidding prices as by the ambivalence and apathy of the coalition government towards issues that it can actually address.

It is not Pakistan’s resource deficit that is ringing the alarm bells, but the nation’s growing lack of faith in the ability and intention of the PPP-led government to steer our rudderless ship to safer shores. This country has suffered a resource crunch almost all its life. And if temporary calamities could dampen its spirit, there couldn’t be one larger than the earthquake of 2005. But the collective urge to help the distressed and fight adversity actually brought us together as a nation in the aftermath of the earthquake. The gloom that has set in within a few months of our much-anticipated elections is different. While a despot was running the country, the prospect of a return to democracy gave hope for a better future. With our present crop of timid conviction-less leaders, the rewards of democracy might take a while to trickle down. Can we expect ordinary people to abide by such forlorn hope when their plight is getting more

desperate by the day?

It is cause for serious concern that at a time when we need bold action to resolve the various crises infesting the state, the Zardari-led PPP has chosen to hone the art of employing indecision as a policy tool. The ruling party’s approach towards the judicial crisis and the security operation in FATA is a screaming manifestation of its twin curses: apathy and ambivalence. True, restoring the judges will not make bread cheaper. And taming the tribal insurgency will not bring down the cost of fuel. But a resolute move towards resolving these issues in accordance with the unequivocally expressed wishes of the people would buoy the spirit of this nation even in these testing times.

Do any of the issues challenging our nation need to be addressed at the expense of others that are equally important? Why do we hear so much meaningless talk of determining the priority of the evils that are hurting us? Will Baitullah Mehsud stop causing the government grief in the tribal belt if the lawyers give up their struggle for an independent judiciary? Will the oil prices go back to $70 a barrel and the stock market have a bull run if Chief Justice Chaudhry and his fellow judges acquiesce in their unconstitutional removal? Can life and sustenance be secured by ordinary folk in a society devoid of the rule of law and access to justice? Why do we never hear about the dispensability of individuals only when a Chief Justice is forcefully removed and not when the job of an army chief is at stake?

Pakistan is afflicted by multifarious troubles. There are the immediate-term problems threatening the life, liberty and sustenance of people due to the situation in our frontier regions and the upward spiral of prices. And there are overarching issues linked to the absence of justice and rule of law coupled with a crumbled system of constitutional checks and balances. But all these problems are interlinked and the solution eventually lies in a functional justice system. For example, in the economic realm, no jurisdiction in the world can become an attractive venue for direct foreign investment without promising fair interpretation and enforcement of contractual rights. Similarly, no one has absolute rights within a state. In order to have faith in the system one needs to know that competing rights – of individuals, institutions and federating units – are being balanced judiciously. And none of this is possible without a judiciary that is not only independent but is also perceived as such.

In highlighting the Zardari-led PPP’s twin policies of ambivalence and apathy, let us start with its approach to the judicial crisis. Publicly the PPP continues to pay lip service to the cause of the judges’ restoration. But its emphasis on accomplishing this through its abhorrent constitutional package exposes its true intent of maintaining the status quo. First, the PPP and its allies do not have the votes to amend the Constitution and thus a quick resolution of the issue by amending the Constitution is simply not possible. Second, People Lawyers’ Forum led by Sardar Latif Khosa – our attorney general in waiting – has taken all possible steps to sabotage the lawyers’ movement. And, third, while throwing up a litany of problems preventing across-the-board restoration through an executive order, the ruling regime continues to entice high court judges to accept reappointment while promising them their Nov 3 seniority.

No legal argument can explain the reinstatement of High Court judges through executive action while Chief Justice Chaudhry and his colleagues are left at the mercy of a constitutional amendment. But, then, if Sharifuddin Pirzada was capable of magic, why can’t Farooq Naik be similarly blessed. In playing its duplicitous games the PPP seems oblivious to the fact that our court system continues to remain dysfunctional. Even the PCO judges presently serving have a sword hanging over their heads. And such continuing uncertainty with regard to the future of the deposed judges as well as the PCO judges is destructive for the cause of justice in the interim. Restoration of the judges is only the first step among the many required to begin to reinforce and reform the judiciary. With the crisis in its 15th month, it will probably take half a decade only to address the case backlog once normalcy returns. And unless the issue of restoration is out of the way, the innumerable ailments of our district-level court system that bring thousands of citizens to tears every day cannot be effectively addressed.

The government’s approach to the security situation in the Frontier is no better. All we have heard so far is old rhetoric: no one will be permitted to undermine the sovereignty and integrity of Pakistan. While we continue to cringe over the occasional molestation of our sovereignty, what is of immediate concern is how the monstrous growth of militancy and terrorism will be curbed. Yet the PPP government seems to be playing hocus-pocus with the nation: it insists that its defence and security policy is different from that of the Musharraf regime, except that it cannot identify any differences. On the one hand, our prime minister indicts Pakistan by the forecast that the next 9/11 is likely to be planned from our territory. And, on the other, the coalition partners insist that they prefer talks with the Taliban over military action.

Can the coalition government really afford to flip-flop over its preference for talks and military action depending on the audience? What are the strategic goals that our elected government wishes to accomplish vis-à-vis Afghanistan and our troubled north-western frontier? Has our traditional policy of ensuring strategic depth been reconsidered, or are we merely playing around with the various strategies designed to pursue the erstwhile policy? Can we continue to delude ourselves with the belief that the men in khaki who drew our defence and security policies decades back were omniscient? Did we learn nothing from the East Pakistan debacle when our policy asserting that “the defence of the East lies in the West” blew up in our face? Did the lessons of Kargil not reemphasise Clemenceau’s advice that war is too serious a matter to be left exclusively to the generals?

The strength and legitimacy of an elected government lies in the support it enjoys amongst the masses. By shutting down the Parliament and turning a deaf ear to popular demands, the PPP-led government is fast squandering the leverage and the legitimacy it desperately needs to lead this nation towards calm waters.

Email: sattar@post.harvard.edu