WASHINGTON DIARY: A difficult but necessary transition
Like the full bench of the Supreme court (SCP) judges, the military has no choice but to accept modernistic, universal views to save the state by eliminating primitive elements. Nevertheless, just like the SCP, obscurantist military officials, especially some retired hawks, are free to make loud noises while the moderates have to work silently
The NRO judgement alludes to contradictions and the torturous transition Pakistan is going through. The basic contradiction is manifested by the very fact that the highest judicial forum in the Islamic Republic of Pakistan had to rely on the historical judgements of the courts of secular states. A few examples have been taken from Islam — Prophet Muhammad’s (PBUH) concept of equality — and reference to the notion of tauba. However, the court made it clear that these religious notions are taken to be secondary and used to strengthen the judgement, which is based on commonly practiced international law. Why such a contradiction?
The problem is that, whatever the republic of Pakistan is labelled, the country contains a more or less modern populace in relative terms. Furthermore, society has a consensus over the parliamentary type of democracy, in which every voter has an equal weight, requiring specific laws, rules and traditions. The religious parties or modern Islamic scholars cannot address the issue faced by such modern democracies, parliamentary or otherwise.
Democracy is a modern concept; the so-called ‘modern’ religious parties like the Jamaat-e-Islami (JI) are inherently opposed to such universal equality/suffrage in determining the fate of society. For them, decision-making should be in the hands of a body called a shura, selected by a few pious persons. From JI to the Taliban, political formations are run by such shuras. This is one of the reasons that they can hold regular elections: their electorate is comprised of a few well-trained, disciplined persons. But in political parleys, the government, by selecting a few, will always be considered a non-democratic set up. No doubt, the religious parties have no way but to contest the elections but if they had their way, the governing bodies would be set up by a selected few.
Therefore, the Supreme Court of Pakistan’s heavy reliance on the judgements of Indian courts — the institution of a secular, conceived to be an enemy state — shows that whether the judges like it or not, those are the only judicial precedents that are relevant and can be of any use. I would like to add here that most judges may not have wanted to use the precedents of secular non-friendly state(s) but they had no other way. This is how historical determinism functions.
In a way, the Supreme Court decision is a replica of the Pakistani army, which does not want to fight the jihadis but must eliminate them for the state’s survival. The state is greater than the sum parts of its institutions, just like the human body is more than its isolated physical parts.
It is also clear that the full bench of 17 judges of the Supreme Court of Pakistan (SCP) was not monolithic: it had enlightened as well as conservative judges. Additional notes by Honourable Justices Chaudhry Aijaz Ahmed and Jawad Khawaja show how primitive-minded some of the judges were. It is also interesting that only the theocratic-minded and self-righteous voiced their opinion while the others, who would have taken an enlightened approach, chose to keep quiet. Probably, Honourable Justice Ajiaz Ahmed had to add his note because his views were not accepted in the main body of the judgement. But it is interesting to note that, up until now, it has been easy to voice obscurantist views and suppress modernistic ones. It is also evident that the judiciary is passing through a transition with conflicting primitive and modern ideas.
The SCP is no different than other institutions of the state, or even the citizens. It must be true that there are some jihadi military men within the establishment, while the institution is fighting the Taliban and other armed religious bands. Like the full bench of the SCP judges, the military has no choice but to accept modernistic, universal views to save the state by eliminating primitive elements. Nevertheless, just like the SCP, obscurantist military officials, especially some retired hawks, are free to make loud noises while the moderates have to work silently. But rather than jingoistic rhetoric, the military is forced to adopt rational policies.
The political establishment is faced with similar contradictions. Whether the SCP decision on the NRO was implicitly Zardari-specific or not, the political establishment is self-conflicted: It wishes not to implement the decision, but it has no way to get around it. The political establishment, specifically, the PPP, should have reinstated the deposed judiciary as part of rehabilitating the democratic order but it did not. In addition, the president should have reinstated the parliamentary system fully by shifting powers to the prime minister but he kept on hemming and hawing. I am almost sure if the PPP had done whatever was required of it, it would have avoided the impossible situation that it faces now.
The PPP wanted to rule in the old style, assuming that nothing had changed. The fact of the matter is that everything changed: the judiciary, the army and other parts of the system were essentially transformed under historical and evolutionary processes. It is a moot point to keep on arguing about those judges who took oath under the PCO in 2002 or whether the military created the jihadis or not. The question is, where do we stand now? It may be true that the PPP is the most persecuted political formation but it cannot avoid doing necessary things under that excuse.
To sum up: major institutions of the Pakistani state are passing through a difficult transition where players in every institution are intensely conflicted. Up until now, the military and the judiciary have weathered the storm well while the political establishment is lagging.
The writer can be reached at email@example.com
February 2nd, 2010