Modifying the Genetic Makeup of Our Collective History

The genes of our political discourse have up till now been as formidable and constant as those that determine the hue of our eyes or the inflection of our speech. Two chromosomes have paired up unimaginatively to interject our Constitutional order every few years: one which is imprinted with the idea that our political nascence and supposed lack of able political leadership render us ill-equipped for a democratic system bedrocked upon Constitutionalism and an independent judiciary; and the other which impresses upon us the exigencies of short-term gains and temporary stability at the expense of evolving democratic political processes. The result has been an alternating cycle of civilian and military rule, with the latter almost always characterized by a purge of independent constituents in the judiciary, suspension of our natural, political and legal freedoms, and silencing of any expressions of dissent in the name of national interest.

Why have we been so accepting of authoritarian rule? Has our history not taught us any lessons? Can we ever stop assuming that dictators can be benign, moderate, and latent democrats? Is the predilection for dictatorial rule so deeply transcribed in our collective history that every time we see a military ruler pretending to be the Keeper of our Conscience we are persuaded to give him yet another opportunity to mutilate our Constitutional values? And most importantly, why has our public discourse at times of martial law impositions emphasized “the need of the day” without any consideration for Constitutional imperatives? It appears that we have allowed a pernicious form of apathy to seep into our collective political history. As Bertrand Russell said, it is much easier for people to remain apathetic like “the beasts of the field,” until an internal ambition drives them out of their passive roles and fatalistic thinking.

When Musharraf seized power through a military coup for the first time in October 1999, the BBC “Have Your Say” program captured and relayed the voices of hundreds of people in Pakistan as well as from the Pakistani Diaspora all around the world. Amidst the din, a typical utterance that made the rounds was as follows:

“It is an irony that Pakistan has always fallen back under army rule because of a chronic shortage of leaders that may have been democratically elected but are absolutely short of the democratic sense that is needed to run the affairs of any place. Ms. Benazir is no exception to this. I am quite skeptical about the alternatives we have. Under this situation who knows, may be military rule might be better.”

Many people continue to cling to this cynical we-have-no-choice viewpoint to justify their personal non-involvement and political impotence. But positive signs of a discourse that is politically sensitized against authoritarian rule are emergent amongst many sections of the civil society in Pakistan today. Only days into Musharraf’s second imposition in 8 years of martial law (or emergency for those in denial), we have already embarked upon the process of shifting the nature of our political discourse from apathetic acceptance of and blind support for tinpot, self-serving despots to active and constructive criticism of unconstitutional rule. Activists, lawyers, journalists, students and other civil society members have – in an unprecedented fashion – raised a unified voice against yet another attempt to take the Constitution and judiciary hostage. But this voice does not singularly revolve around the denunciation of Musharraf; it goes beyond personality-centered disapproval into the realm of an ideology that stands for democratic rule legitimized through Constitutional values. The message that has been reverberating from within Pakistani civil society for the past 20 days or so is loud and clear:

“We will not accept autocratic rule or a suspension of our Constitutional rights anymore. Our Constitutional values are paramount, and we recognize that non-representative rule can never be compatible with constitutionalism. We want to think about political solutions in line with Constitutional mandates. We want a strong, independent judiciary. And most of all we need a long-term political vision, not short-cut solutions. Our choice is between helplessly clinging to short-term imperatives in the name of “necessities” created by autocrats, or upholding our Constitutional supremacy and democratic values for long-term stability. We overwhelmingly choose the latter.”

We see the beginnings of Constitutional traits taking over apathy and fatalism in our collective present. Whether this process of natural selection will reach a stage of fruition and whether we will be able to entrench democratic solutions depend on whether we will continue to inform ourselves concerning the functioning of our politico-legal system and to remain personally involved in the upholding of our Constitutional liberties. By bringing us to a historical T-junction, Musharraf may yet be the best thing that has happened to Pakistan. The direction we must take is obvious. As the burgeoning political conscience of our civil society has demonstrated, it is time to splice away the old genes of our collective history.

Legal Terror

With the imposition of the ‘emergency’ General Musharraf has not only suspended most of the fundamental rights clauses of the Constitution, he has suspended the Constitution itself as well. The Provisional Constitutional Order (a problematic term surely when a Constitution was in place when the PCO was imposed and when the Supreme Court of the country had announced that any PCO would be illegal) makes it very clear that General Musharraf would have the power to issue any ordinance, any order and amend the suspended Constitution in any which way he likes and this power cannot be questioned or challenged in any court of law.

But the story does not end here. Even after having all these sweeping powers his government has felt it necessary to bring about changes in the Pakistan Army Act (1952), the basic law governing interrogation/trial procedures pertaining to military personnel, to allow civilians to be arrested and interrogated by the military and to be tried through military courts as well.

The new Ordinance, termed Pakistan Army (Amendment) Ordinance 2007 increases the ambit of offences that can be tried under the military legal system. The new Ordinance adds the clauses “any offence, if committed in relation to defence or security of Pakistan or any part thereof or Armed Forces of Pakistan, punishable under the Explosive Substances Act, 1908 (VI of 1908), Prejudicial conduct under the Security of Pakistan Act, 1952 (XXXV of 1952), the Pakistan Arms Ordinance 1965 (W.P. Ord. X of 1965), the Prevention of Anti-national Activities Act, 1974 (VII of 1974) or Anti-terrorism act, 1997 (XVII of 1997), sections 109, 117, 120B, 121, 121A, 122, 123, 123A, 124, 124A, 148, 302, 353, and 505 of the Pakistan Penal Code, or attempt to commit any of the said offences.”

The amendment allows the government the power to arbitrarily choose which civilians, suspected of a crime under all of the Ordinances and Acts mentioned above, are to be detained, investigated and tried by the military and which will go to the civilian system. It allows the army the freedom to hold people under arrest for longer, and without ‘due process of law’ than is expected in cases of arrest, and it allows the army to try them through military courts as well. The ‘normal’ rights of being produced before a judge, being charged in a certain time period, having access to legal counsel and having access to family members would not be allowed to civilians charged under the new army act.

The government felt it had to do this for a number of reasons. There was a ‘missing persons’ case which the Supreme Court, that has been just purged, was hearing. At the last hearing of the case, the Chief Justice, who was presiding over the relevant bench, had remarked that it seemed clear that almost all of the people who were ‘missing’ were in the custody of military and intelligence agencies. Since they were being held in contravention of the due legal procedure, the Chief Justice had warned the agencies to free these civilians or he would be forced to take some ‘extreme action’. The law now takes care of these people and any such new cases. It was also felt, articulated as a charge by General Musharraf in the PCO and in his speeches, that the courts were letting terror suspects off the hook. But the court had countered by saying that if these people are indeed terrorists, and the government is convinced of it, why is it unable to furnish sufficient evidence against these people to the courts.

The new Act is clearly in contravention of accepted norms of legal process and basic human rights. And even if this law is for terror suspects, though the range of offenses to be covered under the amendment are much broader than that, is it necessary to subvert the normal cannons of justice and due process for them? Why are we making torture legal? If people can be kept away from courts, legal counsel and from family members, and if they can be kept under inhuman conditions for extended periods, will this not be the equivalent of legal torture?

Almost all of such laws that give extensive powers to the state, at least in Pakistan, have been abused by the state. It is very likely that this law too will be abused; the missing persons case was an abuse of the existing law. Since the law itself is draconian enough, the abuses of the new law are going to be simply horrendous. How can any civilized society allow such laws to exist and have such expansive and inclusive ambit?

The amendments to the Army Act of 1952 cannot be challenged in the Supreme Court under the PCO. If they could be challenged, it would not have been difficult to show that they are incompatible with the fundamental rights guaranteed in the Constitution. A lot of people have been agitating the fact that the emergency measures introduced by the General should be removed and the Constitution should be restored. We will also have to be aware of the fact that the General has, under the PCO, introduced a number of amendments to a number of important laws. We need to agitate that these amendments should also be removed when the emergency is lifted and any act of legalizing the current period of rule should not automatically give legal cover to these amendments. If the government wants to bring about these amendments, they should take the normal route of going through the legislature and it should be possible to challenge them through the court system under the 1973 Constitution. Otherwise some of these changes will just remain forms of ‘terrorizing’ the population using the coercive power of the state.

The New and Improved ‘War on Terror’ – Episode 1: Saving Pakistan from the Pakistanis

In these dark, bitter days, Pakistanis stoically retain their sense of humour! Two quips that have been lately doing the rounds are: ‘One coup per dictator please!’ and ‘News of the Day: General Musharraf sacks President Musharraf!’ In many ways they encapsulate the ridiculousness of the situation. Here is a man who has held more or less absolute power during his forced occupancy of the top civilian and military positions in the country; who has waged major brutal offensives in various parts of the country against its citizens without even seeking a cursory nod of acquiescence from his lame duck parliament; and whose trademark is a constant condescending sneer for his fellow countrymen. And yet he is now bending backwards to try and convince us and the gradually awakening international observers, that the misgovernment and maladministration of the last eight years is someone else’s fault. Musharraf is shouting himself hoarse in branding key sections of Pakistani society as unpatriotic, irresponsible, and anarchist and bent upon undermining all the good work that he has painstakingly done over the years. The barebones plot of this piece of fiction is as follows. Taliban ‘bogeymen’ are fast hurtling down the green slopes of the Swat Valley in order to establish their control over all and sundry and that the aforementioned villains are plotting to give them secret access to the otherwise impregnable citadel of progressive, forward-looking and liberal governance that our fearless man in khakhi has erected to fight off any obscurantist forces.

Since Musharraf is so persistent in his illusionist story-telling, one is curious to identify these mysterious supporters of the Talibaan, who are being constantly maligned of knee-capping our valiant hero. Arguably the very first batch of ‘miscreants’ picked up by the ‘forces of good’ after Musharraf’s imposition of emergency (read martial law) were those handful of Pakistani citizens who had assembled at the Human Rights Commission of Pakistan (HRCP) building in Lahore. A quick scrutiny does reveal an amazing array of dubious credentials. After all, the group includes university teachers, lawyers, policy consultants, N.G.O workers, businessmen, doctors, entrepreneurs and even that most lethal category – the housewife. And surely they are in disguise for none of them have Talibaan style beards (any beards for that matter), or flowing kurtas and sophisticated weapons. Quite a few of them seem to have gone to tremendous pains in order to meticulously construct their disguises over the years for they are graduates of top international schools and are recognized as the best at what they do in not just the city but indeed the country.

“See I told you – the Talibaan are getting smarter by the day in order to effectively wage their uncouth war. See for example that chap from Harvard – I am sure that our intelligence will corroborate his being particularly savvy with small weapons and IEDs. And those two blokes from Cambridge just look as if they are up to no good. And one can plainly see that the other one from Oxford is not particularly sold on our manner and style of waging the ‘war on terror’ either and, therefore, must be with the forces of evil. And this older man! The one who was suspiciously dunking his biscuits in his tea, when we valiantly barged in to apprehend them. He must be thinking up the formula for a new explosive. How else can you explain his quietly having a hot beverage in times of emergency? As to housewives – you think they cannot be lethal? Well Madam Defarge was a housewife’ (I know! I Know! I am getting a bit carried away in my attempt at reconstructing the ‘incisive’ thinking process behind the stupendous progress in the ‘war on terror,’ evidenced by the HRCP arrests. After all, law enforcing agencies don’t commit the outrage of reading literature. It is forbidden for it stimulates one’s mind and gives ideas – God forbid!).

The HRCP arrests are not an event in isolation but epitomize Musharraf’s real and fast worsening headache, as demonstrated by multiple subsequent arrests of similar people in a similar manner. The very sections of Pakistani society that he has been inaccurately and exaggeratingly purporting to the West as his staunch supporters seem to have betrayed him. Musharraf’s self-imposed myopia inhibits him from seeing that these very people have been displaying their growing discomfort and dissent for quite some time now. His ire and vitriol for judges, lawyers and journalists is not just perception and hearsay. It is documented for posterity in his unique ‘Proclamation of Emergency’ and ‘Provisional Constitutional Order,’ as well as his post 3/11/07 public statements. These documents and statements are unique because never before, even during the heydays of the Newspeak of earlier martial laws, did an autocrat chose the patently laughable option of blaming it all on the scribes, the lens men and the bench and the bar. A sitting President, who is also the Chief of the Army, kicks out the Constitution, fundamental rights and civil liberties and is then irate and accusative because, according to him, the aforementioned scoundrels made him do it. And the lists and numbers of these heinous characters grow by the day as Pakistani cities lose their characteristic charm and vivacity to the constant hum and flash of speeding police vans.

Every day, the ‘war on terror’ progresses in leaps and bounds as the very people who give Pakistan real hope for a bright future, who inform and advise it policies, who interpret and advocate its laws, who galvanize its economic growth, who worry, plan and work for its disadvantageous, who teach its children, who dream its dreams and who move its wheels, face the brunt of a roguish, blunderbuss clampdown on thought, voice, speech and dissent. Pakistani civil and political society, its intelligentsia and its thinkers, its writers and its poets, its professors and their students – in short its best minds and its biggest hearts – are in a state of siege. If they are stifled and decimated – one wonders as to what will be left to save and salvage, to revive, build and sustain against the so-called onslaught of the obscurantists. The obscurantists, if they come to occupy and inhabit these lands, and we are told that they are on their way, will find themselves very much at home for Musharraf will have delivered to them a veritable wasteland.

Student Mobilization Against The Emergency

Students are often the vanguard of social movements that seek to overthrow repressive and authoritarian regimes. In the current crisis in Pakistan—the imposition of Emergency rule (read Martial Law) by General Pervez Musharraf—students across a number of campuses have awakened, organized, rallied, and have made their opposition felt.. Although a nascent movement, the students’ systematic and consistent efforts and the level of domestic and international press coverage they have received have made both the military junta and other mainstream opposition parties sit up and take note.

The mainstay of the student political activity has been at a number of private universities located in Lahore and Islamabad. At the forefront has been Lahore University of Management Sciences (LUMS), the premiere business and social science institution in the country. Other centers have been FAST-National University of Computer and Emerging Sciences, Beaconhouse National University, Islamia College and Hamdard University. Student political activity has also been mobilized in a number of public sector universities including Quaid-I-Azam University in Islamabad, Punjab University and the Government Science College. Most of the political activity has been campus based and has consisted of rallies denouncing Emergency rule and demanding the restoration of the constitution and pre-November 3rd status quo vis-à-vis the judiciary. Rallies have been accompanied by speeches of student, faculty and key activists; resounding singsongs; sit-ins; hunger strikes; as well as the establishment of an underground paper, The Emergency Times (http://pakistanmartiallaw.blogspot.com/). Students have come out in support of lawyers and journalists and have joined independent rallies held by these groups. Most spectacular, and perhaps not unexpectedly in this media and technological savvy age, has been the international coverage these student protests have received. A combination of YouTube, e-news, digital cameras and the internet have allowed the news of student activities to gain international attention (coverage in CNN, ABC, New York Times etc.) despite all attempts by the government to clamp down.

These student protests have hit the political nerve of the establishment. Political activities on campuses have been non-existent since the early 1980s, when the last military dictator who ruled Pakistan, Zia-ul-Haq clamped down on campuses. Nothing compares to the student mobilization during the General Ayub’s period in the 1960s when the movement contributed directly to the downfall of that military regime. A lot is made of who these students are and what they represent. The fact is that the core of these protests is happening at private universities which are attended by the upper middle and middle class of Pakistan. Students at these institutions are linked with the establishment and other elements of the elite. What does this mobilization indicate? Is this a generational rebellion against authoritarian figures or a more fundamental reflection of the malaise that permeates among this group regarding the current political status quo? As a Dawn editorial on the 11/11/2007 noted these “Poster-children of Pervez Musharraf’s enlightened moderation…were least expected to speak up against his policies”. Interestingly, the students are not fighting General Musharraf’s policies per se. Leading up the Emergency, there has been little if any debate among students on the war on terror, the policy in Baluchistan or the detention of individuals by security agencies. What has mobilized the students is the dismantling of the basic institutions of the state.

Yet these are the very young people who have most benefited from the rapid consumerism and the leniency of cultural norms that have blossomed under the Musharraf era. The opportunities to rebel against authoritarian structures are constant, and the judicial activism earlier this year provided an impetus which few students took up. The current protests suggest that this time Pervez Musharraf has gone too far and these protests reflect a genuine anger at his political manipulations and the establishment of the Emergency.

Projections in the international media of young men and women dressed in western clothes marching together and carrying banners have had another affect on international perceptions. In effect, it has allowed the middle and upper middle classes to claim back space from the images that otherwise permeate the international media of the “Talibization” of Pakistan-- the bearded mullahs and the habitually covered women who walk ten steps behind and have no voice of any kind. It suggests that there are other political actors who are in the Pakistani mainstream—young men and women who are articulate, passionate and concerned about the de-institutionalization of their political and economic institutions and are willing to stand up to the systematic usurpation of political and economic power by the military. Moreover, at a time when human right activists, lawyers, educators and other members of civil society actors are being rounded up and arrested, the burgeoning student movement gives hope that this group can form the bulwark of the opposition against the Musharraf regime.

How viable is this? It is too early to tell. Only nine days have passed since the Emergency was declared and within that time these students have managed to achieve a phenomenal amount, specially if you consider the non-existent political organization on these campuses prior too 3/11/2007. Students have kept to a limited remit, protesting on campuses, in order to ensure that they are around to protest another day. Rules that limited the state’s access to private campuses prior to the Emergency no longer apply under the police state that currently exists. There is little guarantee that the violence extended to other opposition members of civil society will not be vented on these students within their own campuses. There are issues of organizational structure and sustainability. Should protesting students, who for the most part have been non-political, align themselves to existing mainstream parties to take advantage of their organizational depth and experience? Should these students take positions regarding the existing opposition parties? How strong is their organizational capacity to sustain long-term protest? Is there a need for a supra-student structure to manage this country-wide protest? These issues are only beginning to challenge these inexperienced political protesters and decisions on these issues will determine their long term viability and their ability to sustain opposition. For now, those who watch salute their actions and have faith that the best of this country’s human capital will meet these challenges with intelligence, sound strategy and bravery to ensure a sustained assault again the Emergency.