In the line of fire, Prez Pervez and the Lawyer’s Ire

My wavering faith in blogs is enlivened every time I stray towards CM, that veritable mystery of the vertiginous flour tortillas. Manan’s latest post about the constitutional crisis plaguing Prez Pervez provides a brief, but limpid and incisive overview of the Islamic Republic’s wretched constitutional history (I am shamefully ignorant), which I am impelled to cite from for its remarkable clarity:

From Ayub Khan to Zia ul Haq to Pervez Musharraf, Pakistan’s warrior-kings have made one fundamental claim to the public: that their particular act of suspension of democracy in Pakistan was ultimately constitutional and, hence, for the benefit of the nation. And they have had the support of the Supreme Court in making this claim – a support which gave them the necessary legitimacy to stay in power. In order to understand the current crisis in Pakistan – and to recognize the ultimate blunder of Pervez Musharraf – we have to look at the history and role of the Constitution in Pakistan, the historical involvement of the judiciary in the dismissal of democratic institutions and the tensions between the three centers of power in Pakistani society that undergrid this whole enterprise. Feel up to it?

It is all about the mythic Constitution.

It took nine years after independence, in 1956, for the Constitutional Assembly to come up with the first constitution of Pakistan. That remarkable document survived a mere two years – as General Ayub Khan installed Martial Law in 1958. Another constitution was drafted in 1962, suspended in 1969 and abrogated in 1972. Finally, the constitution drafted in 1973 has held up to this day albeit with this checkered past, summarized aptly by the CIA Factbook: suspended 5 July 1977, restored with amendments 30 December 1985; suspended 15 October 1999, restored in stages in 2002; amended 31 December 2003. It was Zia ul Haq who issued a dozen or so Presidential Ordinances which were grafted as amendments to the constitution in 1985. Among other things, they cemented the power of the Executive to dismantle the legislative branch within the Constitution. Ask Benazir Bhutto and Nawaz Sharif about that.

It may appear counter-intuitive from the teleology I give above, but the Constitution became an almost totemic document in the Pakistani political psyche. It may be that the very public and near-constant assaults increased its importance as a political document. Or, I can conjecture that it was one of the sole documents that sought to ‘define’ Pakistan as a post-independent reality as opposed to a ‘once-future’ promise of 1940 (is it an Islamic State? a Democratic Republic? whose Laws for whom? were all questions that had to be answered in that document. Of course they remain questions, still). The keepers of this tattered almost-narrative – the Supreme Court of Pakistan – have built their own prestige on the back of this document by honing a unique relationship to Pakistan’s self-identification.

The first blow was struck in 1954, when Governor General Ghulam Muhammad dissolved the Constituent Assembly. Maulvi Tamizuddin Khan, the President of the Assembly, appealed to the Supreme Court, asking it rule on the legitimacy of such an action – was the legislative branch a legitimate member of the government, he asked. Chief Justice Mohammad Munir sided with the executive and declared that the legislative served only at the pleasure of the executive because Pakistan was a dominion state and the British Raj still applied. Four years later, in October 1958, President Iskander Mirza killed off the 1956 Constitution and declared Martial Law with General Ayub Khan as the Martial Law Administrator. The case State vs Dosso came before CJ Munir again. Using Hans Kelsen’s Grundnorm thesis, the Supreme Court upheld the coup. The very next day, General Ayub Khan exiled the President and the template was fixed for futures to come.

In 1977, the Supreme Court unanimously upheld Martial Law under General Zia ul Haq. In 1981, he instituted the Provisional Constitutional Order and asked all Justices to re-take their oaths. Those that refused, were fired or retired. This was to ensure future accommodation of any wishes of the Chief Military Officer of the country. The Supreme Court, for example, rejected all challenges and upheld the 1988 dissolution of the National Assembly by General Zia. In 2000, Musharraf stuck to the playbook by sacking any judge that refused to take their oaths to his regime.

The basis of this symbiotic relationship between The General and the Court lie in the structure of power and influence in Pakistani society. The tiers in this pyramid are the Military, which is the largest employer, the largest landholder and has the longest duration in power, the civil bureaucracy, which traces back to the Raj though much weakened during Musharraf’s tenure, and the largely land-based elite. Functioning between these tiers are functional classes like the Lawyers who have parlayed their unique access to military, civil and landed elite into their necessary role as brokers. The Court is apex of such brokerage. It has relied especially on the hagiography of the Constitution to bolster its power. The Generals, eager to have any official stamp on their chest, have in turn portrayed the Court as the last bastion of truly apolitical and patriotic actors in Pakistan. Which means that when scandal does erupt around the Court, it has far greater reverberations. (Courtesy: CM)

Readers can (and should) access the complete blog post here. I am unsure as to how much I share with sepoy, in his opinion of Musharraf; or with Mr. Ayaz Amir for that matter, whose impetuous piece in the Dawn was so unabashedly inquilabi that I couldn’t quite tell whether there was a joke which I had missed (though well worth the read by all means). Ardeshir Cowasjee also published a piece, which was much tempered than Mr. Amir’s; and duly acknowledged that while “President General Pervez Musharraf is a military dictator…he has (so far) not proven himself to be endowed in any manner with fascistic tendencies. (Cowasjee Corner, March 18, 2007)

That Raft of the Medusa which is the ill-fated Islamic Republic, is beset with yet another tempest; and as is the case in such circumstances, people have taken to prophesizing. Will this be the end of Prez Pervez-that straight, no chaser general who managed to convince an entire nation of the transparency of his regime? Ayaz Amir’s latest article, with characteristic nods to the Western canon (his last article was frought with references from Euripides and Keats), guesses that a “long summer of discontent” looms ahead. He writes: It is perhaps the fear of the unknown; what was unthinkable before, or at least unrealistic, now looking plausible: the dim outlines of a post-Musharraf era.

Whatever happens, I have a feeling that the dingy dhow of Pakistan will stay afloat. As Naipaul observed in “Amongst The Believers” migration defines Pakistan; and wayfarers somehow make do. (Doubts should never be entertained, no matter how compelling)


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