January Issue 2003

All the pieces of the Mush doctrine — promoted with almost as much Goebbellian zeal as the Bush doctrine — have fallen into place.

The general is secure in his labyrinth, his five year tenure as President ‘validated’ by a referendum tailored to ensure positive results. Dissidents have been deftly manoeuvred into the political wilderness or coopted by the establishment. And ‘democracy’ has been restored.

But for the people of Pakistan, the new year is marked not by celebration but a deafening silence. In a political history littered with broken promises and shattered aspirations, it is business as usual.

Power, it is said, has been handed over to the ‘peoples” representatives. The question is, which people? Those who cast their vote for their party candidates only to find they had switched sides once elected, or those orchestrating the farce being played out as the return of parliamentary democracy?

At any rate, the complexion of some of those in the assemblies and those awarded positions elevating them to the rank of federal ministers, makes for a compelling picture. Federal interior minister, Faisal Saleh Hayat, awarded this portfolio shortly after he formed a forward bloc in the PPP, is a declared defaulter — by NAB spokesman Major Ali’s reckoning, of a 24 crore, 10 lakh, 72 thousand rupee loan, taken from the Faisalabad branch of the National Bank of Pakistan for the Jewna Textile Mills he owns. Currently out on bail, Hayat’s name reportedly still features on the Exit Control List — which falls under the purview of the very ministry he now heads.

Former PPP leader, Aftab Ahmed Sherpao, charged in five cases of corruption, was acquitted in three and convicted for two. Also out on bail while his appeal in the latter is pending in the Peshawar High Court, Sherpao has secured the portfolio of federal minister for water and power.

A case is also pending against current federal minister for agriculture and livestock, Abdul Sattar Lalika, for the illegal awarding of fertiliser contracts.

Until the eve of his appointment as Sindh governor, Ishratul Ibad, a former convenor and “committee incharge” of the London branch of the MQM, was a declared absconder, wanted in eight criminal cases in four Karachi police stations, with a price of three million rupees on his head. The cases ranged from ‘incitement of violence’ to kidnapping for ransom and murder. The amendment of Article 63 of the constitution as framed in President Musharraf’s Legal Framework Order (LFO) stipulates that an absconder is prohibited from contesting elections. Ineligibility for the assemblies is also a disqualification for governorship under article 101 (2).

Before former Sindh governor, Mohammed Mian Soomro, vacated his seat, he reviewed the cases against Ishratul Ibad and soon thereafter they were quashed.

Nelofar Bakhtiar, a cousin of President Musharraf’s principal secretary, Tariq Aziz, convicted of contempt of court and currently on bail with an appeal pending in the Supreme Court, has been appointed advisor to the Prime Minister on ‘women development and social welfare,’ with the status of federal minister.

Interestingly, there was neither any impediment in Bakhtiar’s contesting the elections — despite an order banning those convicted on charges of contempt of court from contesting (ruling out for example aspiring candidate Akhtar Rasool who is charged with the same offence) — nor in her assumption of the post of advisor, despite having lost her PML-Q seat. Meanwhile, losing candidates are not eligible to stand for Senate elections, courtesy a presidential ruling.

And a winning candidate from Balochistan, who allegedly featured high on the United States’ list of drug barons, and reportedly also as a matter of concern in the recent talks held between Iranian President Khatami and local officials, has been awarded a high profile portfolio in the provincial assembly.

These are just the tip of the iceberg. While the Musharraf regime’s béte noire — Benazir Bhutto, Asif Zardari and the Sharif clan — have effectively had their political wings clipped due to the continuing cases against them, the long list of those under investigation for assorted improprieties, or those in appeal against convictions who now sit in the assemblies, makes a mockery of President Musharraf’s pledge to usher in a clean, wholesome government.

Even NAB chairman, Lt. General Munir Hafiez, does not attempt a whitewash. When questioned in a television interview about the integrity and efficacy of his organisation, given the exoneration of and induction into parliament of several individuals involved in NAB cases, the general responded that such queries should be addressed not to his bureau which only has the jurisdiction to investigate and frame references, but to those under whose jurisdiction prosecution falls.

Other questions also beg answers. Among them, why, almost immediately after the Jamali government was installed, was former provincial minister Faiq Ali Jamali, a relative of Prime Minister Zafarullah Jamali, serving a 38-year sentence after conviction in eight cases of corruption, released on ‘permanent parole,’ without any explanation or enabling provision of the law?

Why was the mercy petition of Chaudhry Sharif, an FIA official serving time in jail after conviction on corruption charges (whose multi-million-rupee plea bargain appeal was reportedly rejected by NAB), accepted by the President under the advice of Prime Minister Jamali, resulting in his release from prison?

Why were the convictions by accountability courts of MMA members, Behram Achakzai and Hafiz Luni, quashed, along with those of other activists of certain select political parties?

In Pakistan today, justice is clearly not blind — and laws are made to be broken.

Section 3 (4) of the Political Parties Order 2002 states, “A political party shall not… promote sectarian, regional or provincial hatred or animosity; or bear a name as a militant group or section…”

Promulgated by the ‘chief executive’ on June 28, 2002, with the Election Commission Order, 2002 and the Conduct of General Elections Order, 2002, these presidential diktats seen in conjunction with one another unequivocally enforce the official position on the status of certain political groups with specific ideological charters. Viewed in alignment with two other presidential decrees (promulgated in January 2002), which disbanded the Lashkar-e-Jhangvi, the Sipah-e-Mohammadi, the Jaish-e-Mohammed, the Lashkar-e-Tayyaba, the Tehrik-e-Fiqah-e-Jafria and the Sipah-e-Sahaba Pakistan, and placed ‘under observation’ the Sunni Tehrik, there is no ambiguity about the eligibility or otherwise to contest elections of members of the banned outfits or parties that fall under the category of “sectarian” and “regional” organisations, or those that promote “provincial hatred.”

Election 2002. Without any ado, the Election Commission (EC) accepted the nomination papers of 69 Sunni Tehrik candidates, 22 for the National Assembly and 47 for the provincial assemblies. Likewise, the Pakistan Shia Political Party and the Mohajir Qaumi Movement, both of whom fielded candidates under their respective party banners.

And while the Sipah-e-Sahaba Pakistan and the Lashkar-e-Jhangvi stand officially disbanded, their most militant son and leader, Maulana Azam Tariq, an accused in several cases of sectarian killing, contested elections from jail — albeit as an independent candidate — won his seat, and was released on bail shortly thereafter.

The fine line between an outright violation of the law and its insidious subversion by those who appoint themselves its custodians has been blurred so often in Pakistan’s chequered political history, that is has now become par for the course. The irony is when the architects of that subversion or violation are those who frame the laws themselves.

The graduation criterion for aspiring electoral candidates set by the Musharraf government, is a significant case in point.

The merits or demerits of the condition aside (and that remains a moot point), the validity of degrees submitted to and accepted by the election commission demands close examination.

Previously, only those degrees from educational institutions (including a handful of madrassas) granted a charter by the government to award certification and recognised by the University Grants Commission, were considered valid.

The October elections opened the floodgates. Overnight, there was a proliferation of degree-awarding madrassas and hitherto unknown ‘American’ and ‘Canadian’ ‘universities’ conferring eligibility for candidature in the elections upon scores of ‘graduates.’

Take the degree (now being challenged in court by the MMA) of federal minister Abdul Sattar Lalika. The conferring authority: the Karachi-based ‘Canadian School of Management.’ Inquiries about this institution so far yield a blank.

The degrees of Sindh assembly MPAs, Saleem Jan Mazari and Syed Ali Bakhsh alias Papoo Shah, from the ‘International University of America, London campus,’ also bear scrutiny. No information is available for this institution.

Interestingly, in 2001, when Shah was aspiring to contest the local bodies elections, the board of secondary education informed the EC that his matriculation certificate was bogus, on account of which his nomination papers were rejected.

And there are no records of government charters ostensibly awarded to scores of madrassas whose degrees left the electoral field wide open for dozens of candidates of assorted political groups, of whom the MMA and the PML-Q were prime beneficiaries. Meanwhile, chartered accountants with five to seven years of training were disqualified as candidates, their degrees considered unacceptable by the EC.

The selectivity demonstrated in the matter of academic qualifications — clearly to allow certain individuals into the election loop — was also applied to keep people out.

In the instance of the filing of nomination papers for example, laws relating to the election procedure were repeatedly changed even after the event, with the visible intent of eliminating Benazir Bhutto and the Sharifs from the race. Initially the law provided for a candidate’s seconder or proposer filing his/her nomination papers if the candidate was not physically present.

However, the President promulgated a new law stipulating that only candidates themselves could file their papers, effectively scotching the two exiled former premiers’ chances of contesting, even in by-elections.

Similarly, while an earlier Presidential order ruled that anyone who had served two terms in office was not eligible for prime ministership or the post of chief minister, the law was amended to allow Zafarullah Jamali — who has served has both, interim prime minister and chief minister — to assume the PM’s mantle.

Given the seeming whimsicality of the regime in promulgating ordinances and issuing orders and notifications, only to withdraw or amend them soon thereafter, it is not surprising that the Musharraf government has the distinction of having issued more orders than any other in Pakistan’s history — 127 ordinances alone, for example, in just the past 11 months.

With sweeping changes introduced through the endless orders, a natural corollary is the confused state of the country’s constitution. While the 1973 constitution was revived by General Musharraf on November 15 (with some provisions relating to the provincial assemblies and the Senate remaining suspended), the document, if inclusive of the amendments of the past three years, bears little resemblance to the original.

The Supreme Court had allowed President Musharraf to amend the Constitution as a measure dictated by state necessity after the promulgation of the Provisional Constitutional Order (PCO) of 1999, but these amendments were subject to specific conditionalities. Among these was the stipulation that the amendments would not impinge on the independence of the judiciary or affect the federal parliamentary system of government.

While state-sponsored constitutional experts could undoubtedly present a vibrant argument to support the establishment’s contention that the amendments do not violate the spirit of the ’73 constitution and are not contrary to the Supreme Court ruling, the creation of the National Security Council, the revival of certain salient features of article 58-2B, and the power conferred on the President to make all vital appointments in the armed forces, unarguably militates against such a defence.

According to the law of the land, all ordinances, orders, notifications etc. promulgated and issued by the Musharraf government under the emergency declared on October 9, 1999 are now subject to validation by Parliament. There is a unanimity of opinion among the lawyers community and all the political parties that the Legal Framework Order (LFO, promulgated by President Musharraf on August 2002, which seeks to validate all the ordinances and amendments, can only be made part of the constitution if approved by a two-third majority in both houses of Parliament.

This notwithstanding, on November 16, one day after he announced the revival of the ’73 constitution, President Musharraf declared that the LFO was now part of the constitution. (The latest edition of the ’73 constitution published by the ministry of law echoes this contention since it has unilaterally incorporated the provisions of the LFO in this document).

Furthermore, the same day (November 16), President Musharraf promulgated yet another ordinance — the Anti-Terrorism (amendment) Ordinance, amending the Terrorism Act, 1997.

The draconian nature of this ordinance apart (which arguably militates against the human rights guaranteed and protected by the ’73 constitution), the very act of promulgating the ordinance is in violation of article 89 of the 1973 constitution which had been restored a day earlier. Article 89 empowers the President to promulgate ordinances — except when Parliament is in session. November 16 marked the commencement of the first session of Parliament. Interestingly, with the revival of the constitution, the PCO of 1999 automatically ceases to be operative. Yet, the anti-Terrorism (amendment) Ordinance of November 16 does not even refer to the 1973 constitution.

It reads “in pursuance of the proclamation of Emergency on the fourteenth day of October 1999, and the Provisional Constitutional Order No. 1 of 1999, read with the Provisional Constitutional (Amendment) Order No. 9 of 1999 and in exercise of all powers enabling him in that behalf, the President of the Islamic Republic of Pakistan is pleased to make and promulgate the Ordinance.”

Says lawyer and former Senator Iqbal Haider, “Now there are two constitutions, the PCO and the 1973 constitution, and we are operating under both. Even General Zia-ul-Haq presented his Revival of Constitution Order (RCO) to the elected National Assembly and Senate, which debated it for five months and approved it only after correcting and amending it.”