What prospects for MPC?

MR Nawaz Sharif wants to hold a multi-party conference in London. As I think about it, my mind goes back to other such conferences in our history. The first of them met in Delhi, and later in Bombay, in 1928. It appointed a committee, chaired by Motilal Nehru, to draft a constitution for India. It was to be a rejoinder to Lord Biekenhead, secretary of state for India at the time, who believed Indians to be incapable of putting together a constitution. Its recommendations, which came to be known as the Nehru Report, were considered by the parent conference at a meeting in Calcutta in December.

At this point it may be recalled that a group of Muslim notables, meeting in Delhi in March 1927 under Mr Jinnah’s chairmanship, had offered to drop their insistence on separate electorates if the Congress would support the following Muslim objectives: separation of Sindh from Bombay, provincial status for NWFP and Balochistan, Muslim representation in the Punjab and Bengal legislatures according to their population, and allotment of one third of the seats in the central legislature to Muslims.

The Nehru committee ignored all of these Muslim aspirations, but the conference nevertheless accepted its report as presented. Mr Jinnah, speaking on behalf of the Muslim League, moved several amendments to incorporate the Muslim demands, but they were all rejected.

These demands would have done no more than enabled Muslims to exercise political influence commensurate with their numbers in the provinces where they formed the majority of the population. The Hindu leaders at the conference would not countenance this plain tenet of democratic governance if it happened to favour Muslims. It is not surprising then that the Muslim League rejected the Nehru Report, and Mr Jinnah interpreted it as signalling “a parting of the ways.” It may be noted also that it made no impact on future constitutional developments. Recommendations of the Simon Commission (1927-29), and not the ones it had made, shaped the Government of India Act of 1935.

Next I should like to discuss a multi-party alliance, which surfaced when a mass movement to overthrow Ayub Khan’s regime in Pakistan picked up momentum in October 1968. Called the “Democratic Action Committee” (DAC), it consisted of eight political parties, but did not include the PPP and NAP. It wanted restoration of a federal parliamentary system, direct elections, and universal adult franchise.

As the movement against him paralysed the cities and brought his government to the verge of a breakdown, Ayub Khan lifted the prevailing state of emergency and released political prisoners, including Sheikh Mujibur Rehman and Zulfikar Ali Bhutto. On February 21, 1969, he announced his “final and irrevocable” decision to step down in January 1970 when his current term would expire.

He invited the opposition leaders to meet with him in Rawalpindi, which they did towards the end of February. After four days of negotiations he accepted their aforementioned demands. Zulfikar Ali Bhutto, who had stayed away from the meeting in Rawalpindi dissociated himself from the understandings reached there and announced his own proposals, including one that called for the disestablishment of West Pakistan as a single political and administrative unit. Sheikh Mujibur Rehman was resentful because the issue of autonomy for East Pakistan had not been addressed. He withdrew his party from DAC, and unveiled his Six Points, which would reconstitute Pakistan as a confederation.

The understandings which DAC had reached with Ayub Khan came to naught as a result of Bhutto’s and Mujibur Rehman’s dissociation. Ayub Khan feared that the latter’s proposals would dismember Pakistan and opted for the use of military force to suppress them. The generals would agree to this course of action but only if Ayub Khan agreed to step down, which he did. As it turned out, neither he nor DAC got what they wanted. Bhutto and Mujibur Rehman did, but not without a bloody and devastating civil war. This was then another multi-party conference that got nowhere.

Let us now consider the Pakistan National Alliance (PNA), a coalition of nine parties formed on January 21, 1977 to oppose the PPP in the elections scheduled for March 7 and 10. When the results came out, it became apparent that the elections had been rigged on a large scale. On March 12, the PNA council resolved to launch a mass movement to secure Mr Bhutto’s resignation and new elections supervised by the judiciary and the army. A great many people shared the PNA’s outrage and responded to its call.

Police baton charges, tear gas, and even firing failed to send the demonstrators home and away from the streets. Hundreds of persons were killed and wounded and thousands, including the PNA leaders, were arrested. On May 18, Prime Minister Bhutto visited Mufti Mahmood (head of the PNA) in the Sihala “rest house” (a jail for dignitaries), offered to hold new elections, and invited the PNA to talks, which after internal consultations the latter accepted, and which began on June 3. Mr Bhutto was assisted by Abdul Hafiz Pirzada and Maulana Kausar Niazi while Maulana Mufti Mahmood, Nawabzada Nasrullah Khan, and Professor Ghafoor Ahmad represented the PNA.

The negotiations seemed to be going well. Mr Bhutto had already agreed to hold fresh elections, and the PNA had dropped its demand for his resignation. Arrangements for ensuring that the elections would be fair and honest remained to be settled. At their ninth meeting on June 15 the two sides reached agreement on the basic issues, but details had still to be worked out. Difficulties arose because the PNA kept bringing in new conditions.

The negotiators began their twelfth session at 8:00 pm on July 1, and when they rose at 6:30 the next morning (10 and a half hours later), they had settled all issues, large and small. Both sides made concessions. But the PNA council rejected the concessions its delegates had made. It produced nine additional demands, which were presented to Mr Bhutto at 10:00 pm on July 3. He asked for time to consider them. By the evening of the next day (July 4), he was ready to announce a final agreement with the PNA, but General Ziaul Haq, the army chief, struck the same night and seized power.

The main reason for this turn of events was that the PNA negotiators did not have the authority to conclude a settlement. Any accord they reached with the prime minister had to have the PNA Council’s unanimous approval. Even one dissenter could block it. It turned out that three of its members did not really want any agreement with Mr Bhutto. Asghar Khan favoured a military coup, expecting that the generals would hold elections within 90 days of taking power. Sherbaz Mazari wanted the army to be withdrawn from Balochistan, and Begum Nasim Wali Khan wanted her husband (Abdul Wali Khan) and other NAP leaders to be released, as preconditions for a settlement. They knew also that Mr Bhutto could not meet these demands because the generals opposed them. This was then still another multi-party conference that failed because its members could not agree on a modus operandi beyond the enunciation of a broad objective.

It is now time to consider the multi-party conference that Mr Nawaz Sharif is calling. One of his spokesmen said a few weeks ago that the proposed conference was intended to develop a united opposition stand on the following issues: restoration of democracy, free and fair elections; an acceptable caretaker government to oversee elections, an independent election commission, return to the 1973 Constitution as it stood before October 12, 1999, supremacy of parliament, and an independent judiciary. Another statement said the conference would devise a strategy for ousting Musharraf.

None of these objectives is controversial, and there is no apparent need for opposition politicians to travel all the way to London to endorse them. But one may be sure that consensus will elude them when it comes to the means of achieving these objectives. Take, for instance, this matter of driving Musharraf out of power. Nawaz Sharif, Qazi Hussain Ahmad, and Imran Khan would launch a mass movement to oust him. But Benazir Bhutto and Maulana Fazlur Rahman do not believe this is a viable option. Qazi Sahib wants to boycott the elections if the general is still at the helm when they are held. Benazir Bhutto wants to contest regardless of where General Musharraf is at the time.

Until a few weeks ago Nawaz Sharif wanted to stay way from the elections if they were held under Musharraf. But a more recent report has it that he intends to appoint provincial committees to identify appropriate party candidates for the forthcoming elections and hopes to have a final list of approved candidates by the end of July. If Nawaz Sharif has indeed changed his mind, and if Qazi Sahib is persuaded to change his, what is there to talk about, and why then have the conference at all? But if there is to be no meeting of the minds on this vital issue, the conference will end up being an exercise in futility.

Ms Bhutto does not want to participate in this conference, ostensibly because she does not want to sit at the same table with the MMA representatives. A party spokesman has recently said also that the conference, if it is to be held, should be called after the schedule for General Musharraf’s election by the present assemblies has been announced (which may not happen until some time in July, leaving little time for the opposition to do anything about it). It is my impression that she does not want this conference to be held at all. She wants to remain free to make decisions one way or the other as the relevant time and circumstances seem to warrant.

I am inclined to think that if this conference is held at all, it will, like the ones considered above, have been in vain.

The writer is a visiting professor at the Lahore School of Economics for the spring semester.

Email: anwarhs@lahoreschool.edu.pk

Judges on trial at the polls

THE judges in Pakistan are appointed to dispense justice but they are also called upon to conduct elections. In both capacities they are expected to be more just and vigilant than the executive officers of the state. Are they really so?

This is the question that came to the forefront last week as the judges met at a conference of their own in Islamabad and the people went to the polls in Karachi and Kotri under their supervision.

Speaking at the judicial conference, the chief justice of Pakistan advised the judges not to leave the people wronged or denied their rights at the mercy of the police. The second question that inevitably arises is whether being at the mercy of the courts is any better.

Delay or harassment does occur at the police station in the registration and investigation of crimes, but it is a fortuitous circumstance when the judge, the prosecutor, the witnesses, the accused and their lawyers are all present for the case to proceed. It is not unusual for the trial of serious cases punishable with death or life imprisonment to take five or more years to conclude, and then the process of appeal and revision begins to take an equal or longer time. All this while, the accused, who may turn out to be innocent in the end but is unable to secure bail or provide security during detention, remains in jail.

The Sindh government’s secretary for criminal prosecutions in a recent report to the governor has blamed faulty investigation and incompetent pleading for delay in the disposal of cases and the low rate of conviction. According to him, the rate of conviction in Pakistan ranges from four to 11 per cent of the cases prosecuted. In India it is 37 per cent and in Britain an incredible 98 per cent. For good practical reasons, the secretary has not blamed the judiciary either for delay or incompetence.

The delay in court trials may be best illustrated by referring to the proceedings in a case of robbery in which this writer was the complainant/victim. The offence took place in April 1996. After arrests and investigation, the case was filed by the concerned police station in the sessions court in December of the same year. It is has been 11 years but the trial is still on.

The investigation and prosecution agencies must indeed share the blame in the delay and miscarriage of justice. But of late the chief justice has rightly emphasised the need for instituting a system of accountability for the judges to identify the lazy or corrupt among them. At present, they are protected from public criticism by the law of contempt and only the appellate courts can castigate them for delayed, bad or dishonest judgments. That does happen but rarely.

The superior courts taking cognisance of illegal or undesirable practices on the basis of their own knowledge or media reports is a growing and welcome trend worldwide. India’s Supreme Court has used this tool to rid Delhi of environmental pollution by compelling the administration and operators of all public service vehicles – 60,000 auto-rickshaws included – to convert to CNG. Pakistan’s Supreme Court, too, has invoked its suo motu jurisdiction but to regulate kite-flying and wedding feasts. Bigger evils should have come first.

The chief justice has now sought to set right the priorities of judicial activism by exhorting the judges at the conference to act to defend the fundamental rights of the people denied to them by a weak or partial state authority. The worst and constant sufferers of such denial or discrimination are the minorities and the poor. The abuse of religious laws enacted by Gen Ziaul Haq is so rampant and painful that it can be checked only by independent, unbiased judicial intervention. Our judiciary must act, where the government for political reasons does not, to enforce the fundamental rights of the minority religious and ethnic groups.

The involvement of judges in the electoral process has proved by experience to be unnecessary and, indeed, unhelpful. But under the Constitution only a serving or retired judge of the Supreme Court or a high court can be the chief election commissioner. The CEC being a judge, or having been one as is the present incumbent, inspires confidence neither in the management of the polls nor in their fairness especially when he is chosen by the president at his sole discretion.

The Human Rights Commission of Pakistan has been highly critical of the polling arrangements for the Karachi and Kotri by-elections and has also expressed serious doubts about the capacity of the election commission to organise the general elections fairly. Thirty other NGOs have also spoken in the same manner. Alleging malpractice that has broken all previous records, Makhdoom Amin Fahim of the PPP has threatened to boycott the forthcoming general elections. So have some other parties.

Rigging the polls is a charge which the winners always deny as vehemently as the losers make it. However, the real point at issue is whether in our scheme of things the CEC exercises effective control over the electoral process to the exclusion of the contesting parties, the candidates and their agents. Neither the CEC nor anyone on his behalf has denied the charges of the HRCP or of the PPP. Whatever may be his reaction, the fact remains that his being a judge has neither helped the management of the polls nor assured their fairness in the eyes of the people.

The Indian constitution does not restrict the selection of the chief election commissioner, or his commissioners, to the judges. The CECs there have all been administrators and yet the elections have been, by and large, free of interference by the government and political parties. Three CECs Krishna Murthy, M.S. Gill and T.N. Seshan were able to conduct eight elections in as many years in an orderly manner only because the Indian constitution clearly vests the “superintendence, direction and control” of the entire electoral process in the election commission. The Constitution of Pakistan, on the other hand, only requires the “executive authorities to assist the election commission” in discharging its functions. The difference is, thus, vast and basic.

The problem central to Pakistan’s electoral process all along has been that behind the curtain of a judicial election commission it is the government and other political elements who direct or disrupt the elections. It would be no different in the next general elections – critical though they are to the future of democracy and indeed to the unity of the country – unless the basic law governing the election commission and its composition is changed to make it effective and independent.

Indian constitutional provisions, traditions and practices (computerised voting, for instance) could be followed with advantage. If India can hold elections that are, by and large, free and fair with a 60 per cent voter turnout (ours is 35) why can’t we? This should be the agenda for a round table conference which all of our leaders in the government and in the opposition should hold without delay. It is much better to be a functional anarchy rather than a bristling extremist polity kept on a leash by the military.

Doyle’s house

BRITAIN’S department of culture, media and sport has just rejected pleas from the Victorian Society and Holmes aficionados to safeguard the future of Undershaw, the house that Sir Arthur Conan Doyle built near Hindhead in Surrey, by giving it Grade I status. Here he wrote the Hound of the Baskervilles and a patriot defence of Britain's Boer war; resurrected Sherlock Holmes, having previously thrown him off the Reichenbach Falls; campaigned for justice for the falsely accused solicitor George Edalji, and attempted to learn the banjo.

Few would rate the house as an architectural triumph, and today it is a poignant, boarded-up sight. Empty for several years, its owners have been thwarted in plans to divide it into separate apartments.

But the DCMS is unwilling to help. Doyle, it asserts, does not occupy a high enough status in the nation's consciousness, saying he is not another Dickens or Austen. Which is true - but few writers are. And few have established a character so firmly embedded in the national consciousness as Doyle did in Holmes, a figure still discussed, revered and cherished across the world.

"Perhaps the greatest of the Sherlock Holmes mysteries," wrote one eminent figure, "is this: that when we talk of him we invariably fall into the fancy of his existence." That was TS Eliot, a recognised expert on national culture.

—The Guardian, London