What will the caretakers take care of?

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The question before Pakistan is whether the caretaker Prime Minister can maintain his writ over the judiciary and the military

By: S. Akbar Zaidi

In a country which has had three-decade-long military dictatorships, interim caretaker governments are somewhat of a novelty. For whenever the military takes over, it changes the pattern and rules of political transition, with the preference to transfer power to one of its own. Yet, it is also surprising that Pakistan has had as many as 10 general elections since 1970. Except for those in 1970, 2008 and 2013, all the others have been neither free nor fair, with the military’s imprint on most of them. It is in the most recent of civilian transitions, following Pakistan’s longest democratic journey, of a decade, that Pakistan’s seventh caretaker government since 1990 takes over today, ostensibly for a two-month period.

Emblematic choice

Of the previous caretaker Prime Ministers, five have been politicians with little following or standing, and one economist lent to Pakistan by the World Bank. This is the first time that a retired judge of the Supreme Court — a retired Chief Justice of Pakistan (CJP), no less — has been chosen by the previous leaders in Parliament to be the bridge between elected governments. The selection of a former CJP is clearly emblematic of the rise of Pakistan’s superior judiciary as one of the two institutions now dominating political discourse and political outcomes in Pakistan.

Of the three institutions — the military, judiciary and Parliament — for five decades from 1958 to 2008, the military dominated, barring a few short years in the early 1970s. The judiciary had been a constitutional ally of the military throughout this period, defending the military’s need to intervene in the civilian domain under a supposed ‘doctrine of necessity’. A shared vision of society and power kept both entwined in subverting any semblance of civilian political agency. However, this bonhomie between the military and judiciary changed in March 2007, when a sitting military dictator-president asked the CJP to resign, something that the latter refused to do.

The Lawyers’ Movement of 2007 against the pressure put by General Pervez Musharraf on the CJP was a key catalyst in bringing back democracy to Pakistan in 2008, after nine years of yet another military dictatorship. The Lawyers’ Movement became one of the few popular movements against military rule and saw the superior judiciary taking on an independent and, for a change, pro-democratic, position, defending the electoral process against military hegemony. At a time when the media was coming of age as another independent institution a decade ago, the judiciary finally gained respect for its independence.

Just as the military lost some of its power after 2007, the judiciary was seen to emerge as a free and independent force, defending the Constitution. A decade later, today as Pakistan prepares to go to elections in a few weeks, the superior judiciary is being castigated for overstepping its role of playing fair and becoming a handmaiden to the military, the other dominant unelected and unaccountable institution. Despite the covert censorship imposed on the media, newspaper editorials have gone as far as calling the Supreme Court “self-righteous” and suggesting that it is overstepping its writ of interpreting the Constitution by meddling in administrative and political affairs. Today, the threat to democratic politics in Pakistan comes not just from the military as it has for decades — the judiciary is being perceived as being partial to certain individuals and institutions, with the Supreme Court sending home two elected Prime Ministers, one for contempt of court and the other for not being a sagacious and righteous Muslim. Following the 2007 Lawyers’ Movement, the term which became popular in the public sphere with regard to the judiciary was ‘judicial activism’. In 2018, ‘judicial martial law’ and ‘judicial imperialism’ have now become part of Pakistan’s public lexicon.

The military’s mind

Numerous independent newspapers and research organisations, as well as many journalists, have been talking about a process of prepoll rigging and political engineering under way in Pakistan for many months now, so that the results of the July 2018 election could bring about ‘positive results’ for the military, with no single party winning an absolute majority. This started with the dismissal of Nawaz Sharif as Prime Minister in June 2017, followed by him being barred from public office for life, both decisions taken by the Supreme Court rather than by the military. Mr. Sharif’s party, the Pakistan Muslim League (Nawaz), or PML(N), was expected to win again in the next elections, and by ending his political career, an attempt has been made to create divisions within the party. Moreover, numerous other measures have also been taken which would suggest that at least one ‘hidden hand’ is involved in ensuring that certain groups and individuals do not contest elections from the ticket of the PML(N), with defections taking place to strengthen the military establishment’s favourite candidate, Imran Khan.

Over the last few months, much evidence has emerged in the public domain showing that Pakistan’s army played an active role in destabilising Mr. Sharif’s government over the last few years. Mr. Sharif has said this was on account of him bringing a former Chief of Army Staff, General Musharraf, to trial for treason. While the military and its institutions have been active in imposing severe controls on the media, which many journalists say are far worse than those imposed by General Zia-ul-Haq in the 1980s, the judiciary has been seen to be the military’s active partner, imposing its judicial writ where necessary.

On Justice Mulk’s watch

It is against this background that a former CJP, Nasirul Mulk, has become Pakistan’s caretaker Prime Minister. Perhaps it might not be inconsequential to mention that it was when he was on the Bench of the Supreme Court of Pakistan in 2012 that proceedings for contempt of court were initiated against the incumbent Prime Minister, Yousuf Raza Gilani, who was eventually disqualified.

In the many months leading up to the end of the tenure of the government that was elected in 2013 and to the appointment of the caretaker Prime Minister, there have been widespread accusations, most backed up with much evidence, that Pakistan’s military has been undertaking prepoll rigging and electoral engineering, to ensure that the candidates of the PML(N) do not win, and that there is a hung Parliament. Moreover, the press has been stifled, media houses reprimanded, and dissent strangulated in what once was a very vibrant media landscape, even in the times of General Musharraf. At the end of 10 years of a democratic government, the judiciary and the military are perceived to be in cahoots with each other, ensuring the domination of both non-elected and unaccountable institutions over Parliament.

For a former CJP, who seems to have considerable respect amongst analysts and lawyers for being non-partial, heading a government for two months leading up to Pakistan’s 11th general election since 1970, the key question is whether a supposedly independent individual can maintain his writ over that of two institutions which are hell-bent on having their own way. Elected governments have been cut down to size and the bar has been lowered to such an extent that perhaps the only thing the caretakers could do is to ensure that elections are held on time. Ensuring that they are fair and free may no longer be in their jurisdiction.

Courtesy The Hindu

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