An Unexpected Birthday Gift

Ferozk,

A very good article which is properly backed up. I can understand why some have grown weary of your usage of Marbury v. Madison 1803... any discourse not colored with verses of the Holy Quran seems to lose focus for some here...

The problem is that too many people are looking to see whether Musharraf will stay or go as the definitive marker of whether this revolution is successful or not. Musharraf`s regime and its end may well be decided elsewhere... but this is actually a matter that will have a long lasting impact on Pakistani polity and you are probably the only commentator who has expressed this. Whatever happens... and my guess is that Musharraf will retreat and things will go back to normal for the time being... judiciary has already become independent in my view. Jawad S Khawaja resigned ... needless to say whoever the ruler ... military or civilian... it might not be easy now to go after the Supreme Court...

Also... it kind of reminds me of what Saima Shah said in one of her articles a few months ago... when she predicted that Pakistan was ripe for democracy. In a way, the Punjab-dominated Pakistan has finally evolved to that critical mass where the right amount of bourgeoisie and the right amount of middle class has thrown up enough educated people who no longer want arbitrary military rule....

You are the on the dot about the secular nature of this debate. A word of caution though... when revolutions reach that important phase, we`ve learnt from Iran, populace also becomes susceptible to be hijacked by reactionary extremist forces... this is precisely why I was extremely happy to read Benazir`s statement in which she vowed to continue the protest but keep MMA out of it...

-YLH

Feroz writes <<< However, the real reason behind the separation of powers, be it in the American constitution or any other constitution including Pakistan’s, is not to balance power as much as facilitate a sense of political compromises between the three branches of government. >>>

Extreme naivety from a political illiterate. There can be a thousand division in the government that by definition can be said to encourage compromise but when only ONE class and one group of a particular social type fills all sections that ``compromise``, then it is already a case-closed before any discussion begins.

What is completely missing from this analysis, which is quite superficial (with sprinklings of worship of Western names and all things Western as is the case with all FR Khan articles) is the fact that the public at large was largely disconnected and missing from this ``struggle``. How that can then be construed as a victory for constitutionalism or democracy is nonsense. It was a power struggle, and as HP correctly points out, in no power struggle can you ignore the role of the Pakistan Army. Where I disagree with HP regarding the factions of the army is that in my opinion this was also the American dominated group, which is much larger than Musharraf and their plan was not the overthrow of the goverment. That could have been achieved by other means and blamed on the Talibans.

Once the Americans grow weary of one of their slaves, they usually send him various signs to bring him back in line, this was just one of those signs.

Re: ballukhan # 8

Good points!

However, you must remember that the over reliance on Islamic interpretation in Pakistani politics and constitutionalism is only 30 years old and before that, despite the Islamic preamblic nature of the constitutions, the country maintained a separation between the theocractic and secular issues.

Ciao

Re: bjkumar # 10

Your point # 2 may be valid, but in this case there is a geninue sense of public empathy with the cause of justice in the present crisis and not with the personality. The personality of the chief justice is accidential and even if an understanding is reached, it does not mean that the legal community will stop their protests. The main argument being made, in the legal profession, is for the lawyers and the judges to unite as one against the government.

Your assessment of an understanding between the judiciary and the executive is reasonable, but bear in mind that the lawyers in Pakistan had never supported Musharraf and if the justices go ahead, with a rapprochement, it will divide the legal community in Pakistan over the issue. There is an internal debate talking place in the Pakistani legal community and once that is settled, we will see what the next steps will be in the future.

This is the begining of a process and as a process, it will take its own time to gel into a clearly defined argument and thus, we should not be expectant of instant results or resolutions to the crisis simply on the basis of past experience.

Point # 3 fails in the sense that judiciary did, in reality, help the process by which the executive-military did garner power. As mentioned, it is not the question of what happened in the past, but what will happen tomorrow that is prompting the legal response. Then is there is the issue of a public image dimension to the crisis and through it, the judiciary wants to regain the lost public trust in it as an institution. In the present situation, though the past is good indicator, events suggests that it will not be entirely abided with because no matter what happens, the executive did over reach itself in the crisis and it was stopped from its fiat by another branch of the government on a constitutional basis. Yes, in the past the military got away with its ingresses, but this time it did not and that has made the difference.

The context is that though the military-executive might still be powerful, it has been forced to compromise and the crisis will end in a political-legal compromise and it is the nature of the compromise that will slowly strengthen the idea of separation of powers. The hope is that the present crisis will not necessarily result in the loss of military-executive power but in the arrangement of a balance of power, between the three branches, that would gradually evolve a constitutional separation of powers in Pakistan.

Separation of power does not mean an equality of power but it implies a constitutionally accepted ``inequality of power``. In this case, a debate is fermenting in Pakistan in which the constitution is the fulcrum and has not been sided lined from the start. This is a difference.

Point # 4 is well reasoned and that is why, we cannot predict with certainity what the final outcome might be because the nature of debate is still being decided. Everything hinges on the framing of the arguments; if it is kept to a constitutional limit and the politicans are not allowed to politically dominate the arguments and thus, distract from the main constitutional points, then it will not fizzle out.

The government would love to see politics dominate, because than it would be in a better position to counter-arguments and discredit them, but as things are at the present; the government has no constitutional case. This is why the legality of the reference is more important than the charges and if the arguments are made on the legality of the reference, then the government will have a hard time to justify its actions.

The legal understanding of the issues is that president, has the right to file a reference under Article 209 of the 1973 Constitution, but to the Supreme Judicial Council which then files the reference against the individual itself through an ``in-house proceedings``.

In this case, and what the laywers are complaining is not the right of the president under Article 209 of the constitution, but that that Supreme Judicial Council did not file the reference, but was given the reference. The procedure is that the judiciary and not the executive asks the individual to step down, but it does not mean that person becomes non-functional.

The chief justice of Pakistan, despite the filing of the reference is still the chief justice of Pakistan, but since the reference has been filed against him, it means that he cannot preside over his own triall. It was for this reason that an acting chief justice was nominated and that too, the third most senior, because Rana Bhgwandas, the senior most judge, was out of the nation. Once Bhgwandas returns, he would become the acting chief justice of Pakistan and preside over the case.

Acting chief justice does not mean a replacement of the chief justice in a judicial sense, but in an administrative sense so that the there is a head of the Supreme Court to oversee its functioning and still maintain its heirarchical organization. The word ``acting`` implies a transitory post and not a permanent one.

Point # 5 does not account for the fact that in a crisis situation, it is not the time factor but the ability manage a crisis that make the difference. The military-executive can have all the time in the world and they will be successful if they can manage the crisis and influence and even control the flow of events and if they cannot, then all the time in the world will not help them.

Point # 6 assumes that the mindset has not changed, but the act of resisting when appeasement would have been the norm, does suggest a shift in the mindset.

Point # 7 is a very realistic question when and where power politics are concerned. As said before, it is not the number of divisions but their ability manage the situation that will be the critical nuance.

Point # 1 does not even apply in Britain or the United States let alone in Pakistan! lol

Ciao