Politics of “reconciliation” amongst looters

Huzaima Bukhari & Dr. Ikramul Haq

In the wake of February 2008 elections, the people of Pakistan thought that the rulers would respect their mandate by moving towards an egalitarian society—the essence of people’s rule. The ruling elite—unholy alliance of bureaucracy, politicians and businessmen—always resist any such change. When matter comes to surrendering their ill-gotten wealth—the main source of their power—for the benefit of masses, the privileged classes, despite their political/ideological differences, start showing “gestures of reconciliation”.  As soon as media start exposing their financial corruption, tax evasion, plundering of national wealth, they “unite” (sic)—immediately meeting at sumptuous dinners and talking about working together for “national interest” (sic) by bridging their “differences” (sic). They start feeling threatened with open public debates about their tax declarations and figures of loan write-offs.   

Tragically, the apex court has yet not decided the issue of loan-write-offs though suo moto action was taken twice—in 1996 and 2008.  In 2008, according to Press reports, the Supreme Court took serious notice of the fact as to how banks wrote off a staggering amount of Rs. 125 billion as “bad debts” during 2000-2006, against Rs. 30 billion written off during 1985-1999. According to reports, larger numbers of loans were written off under Circular No 29/2002, issued by the State Bank of Pakistan (SBP). It was admitted by SBP during the hearings that the major beneficiaries were leading politicians and industrialists.

During the self-acclaimed “transparent era” of Musharraf-Shaukat, loan write-offs in just seven years (2000-2006) crossed the figure of Rs.125 billion, whereas in the much-publicized “corrupt eras” of elected governments (1985-1999) it was merely Rs. 30 billion.  The country’s banks and other financial institutions wrote off an amount of over Rs 30 billion during the governments of Muhammad Khan Junejo, Benazir Bhutto and Nawaz Sharif. During the two tenures of Nawaz Sharif (1990-93 and 1997-99) Rs. 22.35 billion loans were written off—during his first tenure, a total of Rs. 2.39 billion were written off and in his second, the amount went up to Rs. 19.96 billion. The written off loans during the two tenures of Nawaz Sharif constituted approximately 74.5 percent of the total of Rs. 30.18 billion, written off between 1986 and 1999. During the two tenures of late Benazir Bhutto, a total of Rs. 7.23 billion loans were written off, constituting 24.2 percent of the total written off loans—Rs. 494.97 million in her first tenure and Rs. 6.74 billion in the second term.

During the Musharraf-Shaukat era, an unholy alliance of bankers, businessmen-cum-politicians and bureaucrats managed to plunder public money through an amnesty scheme from SBP, though banks had liquid securities to recover the loans. The SBP submitted before the apex court that amongst the beneficiaries of Ccircular No 29/2002 were two sitting chief ministers of PML(Q) regime.

The ruling elite skilfully engineered the amnesty scheme to get the benefit of write-offs and a consequential concession in tax law for no-taxation of benefits derived, whereas their personal wealth kept on increasing. All these beneficiaries of loan write-offs still possess assets worth billions of rupees. The criminal culpability of successive governments in this matter has tarnished the image of Pakistan—worldwide known as a haven for the corrupt, plunderers and tax evaders.

Table A depicts the cumulative position of the non-performing loans and advances of banks and non-banking financial institutions from 1982 to 2008, which has been compiled from their published Annual Accounts. This shows not only the quantum of non-performing loans, but lack of political will to recover billions of rupees of deposit holders when the creditors are in possession of securities and through introduction of a simple foreclosure law, assets of debtors can easily be liquidated to recover the amounts due.

TABLE A

                                                 

1982                                                    Rs. 8 billion

1988                                                    Rs. 39 billion

1993                                                    Rs. 62 billion

1998                                                    Rs. 118 billion

1998                                                    Rs. 140 billion

1999                                                    Rs. 164 billion

2000                                                    Rs. 171 billion

2001                                                    Rs. 185 billion

2002                                                    Rs. 218 billion

2003                                                    Rs. 229 billion

2004                                                    Rs. 241 billion

2005                                                    Rs. 255 billion

2006                                                    Rs. 265 billion

2007                                                    Rs. 269 billion

2008                                                    Rs. 274 billion

The Supreme Court of Pakistan, way back in 1996 (Reference: Dawn dated 16^th October, 1996), taking suo moto cognizance under Article 189 of the Constitution of Pakistan, took up this issue of loan write-offs and expressed intention of studying all the governing laws in this regard. The apex court vowed to make authoritative pronouncement that “would eliminate the chances of misusing the laws for siphoning of public money”. There is, however, no track as to what happened to that public interest litigation case, it appears the same is still pending even after a lapse of 13 years.

The said public interest litigation originated from a reference filed by then President, Late Ghulam Ishaq Khan against a PPP, MNA, Rao Rasheed Ahmad, who as a member of loan write off committee, blatantly ordered to write off a loan of his wife. There have been many such examples where the rich and mighty managed to plunder the savings of the have-not (small depositors) in a shameless manner. An unholy alliance of bankers, businessmen-cum-politicians and bureaucrats has destroyed the entire banking/financial system.  

The politics of writing-off loans in this country requires proper investigation and study as it will unveil many “big names”, who are responsible for failure of democratic process in Pakistan. The country lost billions of rupees as revenue as well because bad debts written off by the banks on specific directions of SBP were also exempted from income tax. The Government of Pakistan, SBP and Federal Board of Revenue (FBR) never considered the report of Auditor General of Pakistan in this regard issued far back in 1992, showing loss to public exchequer of Rs. 120 billion. It is a matter of record that the Board of Revenue despite this audit report from the Auditor General of Pakistan, issued another instructions on February 4, 1993 vide its letter No. 13(26)/IT-1/79 giving further concessions to the banks. The cases relating to plundering of public money to the tune of billions and blatant abuse of powers by rulers and their henchmen pose a serious threat to our democratic culture.

The unscrupulous businessmen (most of them are now politicians and elected members of parliament), state functionaries and corrupt bankers have joined hands to deprive this nation of billions of rupees of public funds and colossal loss to public revenues. The big bosses of the State Bank and FBR should be summoned by the apex court—Public Accounts Committee will not do so to protect fellow members—to explain who had forced them to issue “administrative instructions” in gross violation of law for loan write- offs and allowing unprecedented tax exemption to the beneficiaries. The inquiry into loan write-offs will not only reveal the modus operandi through which public money is siphoned off but can unveil the real beneficiaries. If we want to establish true democracy in Pakistan, public money looted by these criminals should be recovered, they should be disqualified permanently from holding public offices and all those who facilitated them should be given exemplary punishment.

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The writers, tax lawyers and authors of many books, are visiting professors at the Lahore University of Management Sciences (LUMS).

How to democratize governance?

 

 

Huzaima Bukhari & Dr. Ikramul Haq

Civil servants performance reflects the performance of government. Your role must be that of “enablers” and “facilitators” rather than just “regulators” — Prime Minister, Yousaf Raza Gilani, addressing 90th National Management Course and 5th Senior Management Course at National Management College Lahore on July 25, 2009.

In our Land of the Pure, the poor masses are subjected to heavy and cruel taxation — cumulative incidence of various indirect taxes alone is as high as 40 percent—to finance the luxuries of the politicians, civil-military bureaucracy and the rich and mighty — who enjoy all possible facilities at subsidized rates. The way they waste and plunder the taxpayers’ money is no secret — shamelessness is the most appropriate word to explain their conduct. No serious effort since independence has been made to reform our mighty civil-military complex and its henchmen — the corrupt politicians and businessmen. On the contrary, numerous committees and commissions were constituted to “rationalize their pays and perquisites”. The politicians, who openly and vehemently profess differences on all the major national issues, always unanimously vote for manifold increases in their pays and lucrative perquisites.

Prime Minister, Yousaf Raza Gilani while speaking to grand gathering of senior bureaucrats asked the Pay and Pension Commission, notified on 6 April 2009, to come up with concrete suggestions for a reasonable pay and pension package for the government employees. Our worthy prime minister has not established any commission to assess the unbearable incidence of taxes and cost of basic services to the ordinary citizens and how to give them relief. But he is very concerned to give further benefits to the mighty bureaucrats, enjoying unfettered powers and making the lives of common people miserable. It is a strange form of democracy where the privilege classes do not pay due taxes but want more and more share in taxpayers’ money. In other democratic countries, the rich are taxed for the benefit of the poor. In Pakistan it is the other way around.

Our civil servants and politician feel that they are economically deprived! They always look for enormous emoluments and fringe benefits!! The sense of economic deprivation is certainly true for the majority of low-paid employees—though most of them are also involved in corruption — but the top-notches have enormous assets and money — hidden kept outside or within the country in the names of others. They have legitimate right to get the reasonable pay and security of job. The State must fulfill its duty of good Pay master towards them. They in turn should be the public servants in real sense of the word and not the Gora sahibs—the legacy left by the colonial masters.

A system of check and balance — under which asset and tax declarations of civil servants, judges, generals and politicians are open to public — is a sin qua non for the establishment of a true democratic culture and polity. The monetizing of all the fringe benefits available to the government employees, judges, generals, ministers, advisers must be done forthwith — it will not only be cost-saving but a first step towards the democratization of governance. It is the high time that the government should devise and implement a well-thought-for programme for democratization of governance.

The other day a powerful officer in Federal Board of Revenue (FBR) — known as seasoned bureaucrat and extraordinary tax administrator — was complaining about rude and incompetent politicians. He commented: “governance is not the politicians’ cup of tea they all are law violators by nature. Look at their election expenses and declaration the file with the Election Commission”. He said “double salary given to FBR employees is just peanuts when compared with “huge money” wasted on “worthless” elected members—each one is costing over Rs. 4 million per year. Besides, the money they plunder from various schemes and funds allocated to them as political bribes.

Total budget sanction for National Assembly and Senate for fiscal year 2009-2010 is about Rs. 1.5 billion and Rs. 0.7 billion. This does not include perks and perquisites of ministers, state ministers and advisers. This poor country has army of ministers, state ministers and then advisers! A minister enjoys salary, allowances, financial benefits, rights, privileges and concessions. There are ‘equipment allowances’, travelling expenses for the minister and his family, cost of transporting personal servants, cost of transporting house-hold effects, sumptuary allowances, a furnished residence, travelling allowances for touring in Pakistan, Business Class air fare for him/her and his/her spouse, travelling allowances for tours abroad, First Class air fare, unlimited medical allowances and reimbursements, police escorts, fuel expenses, security, personal staff, office staff, utilities, entertainment allowances, entitlements of staff and telephone allowances—the list is yet not exclusive.

The total amount spent on military establishment — not for defence needs but for the luxuries of the generals and other high-ranking officers — is nearly Rs. 125 billion. The cost of running the offices of president, prime minister, ministers, all the ambassadors-at-large, advisers and governors (supported by huge staff) in a year is between Rs. 130-145 billion — 60 percent of it is extending a host of fringe benefits. The entertainment budget alone of Prime Minister and President House is Rs. 70 million and Rs. 95 million respectively.

One minister costs around Rs. 60 million per year; whereas we spend Rs 144 per Pakistani per year for health; and Rs 145 per Pakistani per year for education! We beg money from all and sundry — its use for non-productive purposes is more painful. No sustainable growth has been achieved even after borrowing billion of dollars. People are dying of hunger — majority is living in miserable conditions — and our privileged public servants (sic), public office holders, generals and judges are not ready to give away their perks and benefits. Why they cannot live like ordinary people?

According to a Press report, “in the locality sprawls over an area of 1,514 kanals of Mozang, Lahore, the largest house in the area, over 52 kanals, is the designated house for the Lahore High Court Chief Justice. The Commissioner’s House is the second largest house covering 26 kanals. The Chief Secretary’s House covers 12 kanals and the Chief Minister’s House covers 5 kanals.

“The Punjab government has earmarked Rs 841.52 million in the Annual Development Programme (ADP) at the disposal of the Services and General Administration Department (S&GAD) out of the total outlay of Rs 160 billion. The S&GAD would complete 51 ongoing schemes at the cost of Rs 475 million and Rs 366.4 million would be used to initiate and execute 25 new schemes during the next fiscal year commencing from July 1. The lion’s share of the funds would be used for the renovation, alteration and landscaping of GOR-I to facilitate the civil, police and judiciary officers living in the residential locality. The government has allocated Rs 10 million to construct 13 residences in GOR-I for officers in BS-20 and above. The renovation of Punjab House in Islamabad, Karachi, Murree and Rawalpindi is also a part of the budget. The government has allocated Rs 28.39 million for upgrading a gymnasium in GOR-I, Rs 0.66 million for the improvement of parks and playgrounds, Rs 0.39 million for the renovation of external water supply lines, Rs 1.16 million for the construction of cabins for security, Rs 5 million for the construction of an over-head water reservoir and installation of a turbine, and Rs 5.23 million for the installation of a diesel generator to ensure uninterrupted water supply to GOR-I”, the Press report reveals.

The government has also allocated Rs 27 million for the construction of the Chief Minister’s (CM) Secretariat at 8-Club Road in GOR-I, Rs 2.5 million for uplifting the facade of the Punjab Civil Secretariat and to build a gymnasium there for secretariat officers. The government has allocated Rs 1.2 million for installing a diesel generator for uninterrupted power supply to Punjab Hall and the Chief Secretary’s Office, and has set aside Rs 20 million for furnishing the Minister’s Block at the Civil Secretariat”, the Press report further adds.

 

This is the story of good governance in the Punjab—where the Chief Minister prefers to be called Khadim-i- Aala (Chief Servant)! The situation in other provinces and the federal government is no different—rather worse. Huge sums are wasted for providing privileges to the high-ranking government officials and politicians. The situation is same in the military establishment. The style of living of our generals is unmatched in the world. In the post-colonial period they became not only political masters but also the main beneficiaries of country’s major resources [see facts in Military Inc by Ayesha Siddiqa]. In the prevailing scenario, democratization and decentralization of governance in all institutions, including the army and judiciary — two scared cows in Pakistan — is vital if we want to progress.

While the government servants blame politicians for plundering and wasting the money, they allege that bureaucracy is the root cause of all the ills. They claim that a secretary of government costs at least Rs. 500,000 per month to national exchequer with lot of facilities and perquisites in kind. If rent-free accommodation given to him in Islamabad alone is evaluated on market basis, the benefit is not less worth Rs. 150,000 per month. In addition, he exercises unfettered powers and defy the orders of elected members of parliament and even sometime of ministers.

The politicians complain that bureaucrats do not implement their orders and keep on tarnishing their image in the public. The expense of monstrous government establishment — at federal and provincial levels — is very high and on top of that corruption and rent-seeking is the order of the day. The following details will certainly be eye-opener for public at large and extremely painful for the honest taxpayers, who are fleeced to pay for the luxuries of the mighty government servants and the rich:

Out of total consolidated current expenditure of Rs. 2066 billion for fiscal year 2008-2009 of federal and provincial governments, the amount spent on perquisites and benefits of government servants was enormous; Federal government spent Rs. 140 billion, Punjab Rs. 55 billion, Sindh Rs. 40 billion, NWFP Rs. 17 billion and Baluchistan Rs. 12 billion.

184 high ranking officers inhabit 12,644 kanals of land for their palatial residential buildings. Sitting in these palaces, these people consider themselves Gora sahibs above any accountability. They decide the fate of Pakistani people on the streets.

Majority of government functionaries lives beyond means spending far more than salaries it receives.

The above facts call for immediate right-sizing — closing down of all the unnecessary departments, divisions, sub-divisions and allied paraphernalia [see list in Capital Suggestions, The News, January 04, 2009, by Dr. Farrukh Saleem]. The list is long and astonishing. At Constitution Avenue, Islamabad, one can count 30 useless government establishments that are doing nothing but have imposing buildings and huge staff. The same is true everywhere — in all parts of the country one finds governments office, overstaffed, wasting money and time and making the lives of the citizens difficult. This is in nutshell the story of our civil service — the worst remnant of colonial legacy.

Living in sprawling bungalows with army of servants, the mighty bureaucrats and generals are least pushed to bother how the common man is living (or dying)—even totally indifferent towards their own fellow low-paid employees. The civil-military structure in Pakistan is class-oriented and against the basic precepts of democracy. They make policies while sitting in the air-conditioned rooms for poverty alleviation and what not. The other day, the FBR issued rules making it mandatory for all firms to file statements and returns electronically without realizing the non-existence of internet facility at the remote places of the country, and even in big cities for want of electricity supply!

All indicate that democratic form of governance is an alien concept in our peculiar socio-political milieu — State of Pakistan since independence is either directly run or controlled by a strong civil-military complex. It has proved to be crueler that colonial masters — in terms of oppression, denying the people their fundamental rights and being highly inefficient and corrupt. Since independence political elite, playing in the hands of civil-military complex has also shown strong indignation towards pro-people decentralized governance. Our governance model — under civil or military rules alike — has proved to be even worse than many developing countries where decentralized governance has brought benefits for the people at gross root level — during our recent visit to Chile we experienced the great advantages of democratization of governance with government official getting all the emoluments in cash and living as happily as their fellow citizens in same localities, using the same public transport and their kids going to public schools meant for all. Our elitist system has made civil servants, judges and military bureaucracy masters. The low-paid employees in civil service hardly meet the both ends but their bosses live like kings! Democratization and decentralization of governance needs serious consideration if we really want to move forward — democracy is not electioneering per se. One of its essential elements is rule for the person which is missing totally in Pakistan.

The first and foremost step towards democratization of governance should be undoing the legacy of Raj. The immediate action should be right-sizing of huge government machinery and monetizing of all the fringe benefits and perquisites in kind given to the employees [see detailed recommendations by Dr. Ishrat Hussain, Shahid Kardar, Nadeem Ul Haque and many others]. Democratization and decentralization of governance necessarily requires complete reform of our civil service and military establishment as well as accountability of public office holders. The State must withdraw from all its employees and public office holders all facilities like houses, cars, servants, telephones etc. All perquisites given in kind should be monetized. Let the government servants, especially the senior bureaucrats, live with the ordinary citizens of Pakistan and not in GORs or other posh colonies. It will give them real insight how the policies should be made and what are the real problems of the ordinary folk.

The government servants should construct their own houses or take residences on rent as other citizens do. Grand housing scheme by the State should be for all — no separate palaces for bureaucrats. The lucrative properties on The Mall in Lahore and elsewhere in the country are not the jagirs of bureaucrats. These belong to the masses and they should be the beneficiaries of their assets. Why the ministers live on the sprawling houses on The Mall and designated placed in Islamabad and in other cities. Why in GOR, The Mall, judges get huge bungalows. They should also live like ordinary people.

Why the Corpse Commanders have houses right in the cities in acres. Why the governor houses in all the four provinces are so huge. These questions are important from the standpoint of democratization of governance. The existence of such luxuries for the rulers and privilege segments of society is derogatory to Constitution and democracy. In other countries such buildings are open to public—as museums or functional places. In Pakistan, these are outbound for the common man. These should not be available as perquisites to anybody.

The government must revise pay structure of its employees but all fringe benefits/perquisites in kind should be monetized. This will be the starting point of change in society — beginning of the democratization of governance. It is the Constitutional duty of the State to treat all the citizens equally and provide them the facilities of education, health and transportation. Since all the money is spent on the luxuries of the rulers and their henchmen, the State has persistently been failed to fulfill its main responsibility. Those who manage and perform State functions — public office holders and civil servants — must be made part of the masses. The colonial concept of master and servants relationship must end now. 14th August 2009 — marking 62nd anniversary of independence—is close and it is the high time that we should make a beginning of democratization of governance.

 

 

 

“Slavery syndrome” and cronyism

Huzaima Bukhari & Dr. Ikramul Haq

 

Subjugation, physical or mental, creates disastrous results—crippling the subjugated to the extent they are neither dead nor alive. The agony of this state—perpetual despair and never-ending pain—is much worse than death. Death of an individual or annihilation of a nation is, in fact, deliverance—a relief from anguish and pain. But subjugation is unremitting punishment. History of subjugation and resistance presents vital lessons for humanity. Subjugation is the worst malady that inflicts long-term slave mentality in people. Resistance on the contrary kindles the hope of life—regaining of freedom being its prime goal.

The subjugators, after being defeated, struck back by creating a band of sycophants and cronies, who in the name of self-rule started exploiting their own masses. They continue serving their foreign masters and prove to be even worse rulers. This is the tragedy of most of the so-called independent states— Zulfikar Ali Bhutto called it Myth of Independence—in the post-colonial era. The subjugators are still ruling their ex-colonies— operating through their henchmen, local gumashtas (agents). Pakistan is a fit case study of this phenomenon. The country after independence in 1947 was soon subjugated, and many think that the death of Mohammad Ali Jinnah was the starting point.

 Except Zulfikar Ali Bhutto—one school of thought even doubts it—every ruler was to take command from the men in uniform who were hired by their foreign masters. The men in uniform started controlling all the organs of State from the very beginning through their lackeys in politics and civil bureaucracy. The role of political elite in the post-independent “security state” of Pakistan has been shamelessly anti-people. Calling themselves “leaders”, they serve the army and their neo-colonialist masters with great zeal. It is a matter of record that a sitting speaker of the National Assembly told a British royalty in his chamber “my ancestors were humble servants of the Majesty and we still are your loyal servants” [see detailed work of Hassan N. Gardezi, Neocolonial Alliances and Crisis of Pakistan] .

  In Pakistan, unlike other re-subjugated nations, everybody takes great pride being part of the “invitees’ list” of US and UK embassies in Islamabad. In other places, people will reject such invitations—but in this land of the Pure, even religious parties, claiming to be anti-USA and UK, feel annoyed if not invited by CIA-MI-run missions in Islamabad. Qazi Hussain or Munawar Hassan of Jamaat-i-Islamiare no exception. They tell US visitors: “Please deal withus alone. We alone have leverage to bring Taliban on terms withyou”. Perhaps, they do not know that US created these monsters and still have close liaison with them. The other day, a secret memo of US State Department, published in a leading New York paper, revealed that “no political figure in Pakistan has ever turned down an invitation of US Embassy in Pakistan to attend a private party where alcohol is served. In private they criticize us and in such parties ask for personal favours”.  

Daily we watch the media showing meetings of “foreign masters” with our military leadership, president, prime minister, ministers, political leaders, bureaucrats and even with city nazim! Once even the great Chief Justice of Pakistan fell victim to this undesirable ritual. They treat us as a colony [fault is entirely ours and not theirs—  beggars cannot be choosers] and we feel proud in taking their prescriptions for every ill, without realizing that most of the problems, are due to this subservience, which can be solved through public debates and political will and in much better ways. This “slavery syndrome” is one of the major reasons for our failure in becoming an independent polity and self-reliant economy. 

 Those who are commanding us, claiming to be champions of democracy and freedom (sic), have in fact created a chaotic world where might is right. The powerful that matter in the global politics want perpetuation of their control through hand-picked cronies and lackeys in different countries. They back only those who promote cronyism. Those who joined hands with the dictator were exonerated under the National Reconciliation Ordinance, 2007 [NRO]. This they called “political reconciliation”.  Many viewed the NRO, promulgated in the late hours of 5^thOctober 2007, just a few hours before the presidential elections (sic), a step towards further promoting and cementing the culture of loot and fraud in the country. They proved right as in the wake of February 18, 2008 elections, the beneficiaries of NRO started fooling the people again in the name of roti, kapra andmakan, while themselves holding wealth of billions of rupees out of the country and crushing the people under Petroleum Levy. They overnight became the defender of the military dictator. But as every crony does, as soon as they got relief from courts they started calling him a relic of the past. Its another thing that he rightly deserved that treatment; it was a perfect tit for tat.

 Mian Nawaz Sharif, who earlier joined hands with new Washington-approved “power”, then  criticized him for violating the terms of Meesaq-i-Jamhoriat, (Charter of Democracy), has now again started an era of “friendship” (sic) with the same man whom he called the most unreliable after meeting in Raiwind Palace on July 17, 2009.   The PML(N) is no different from PPP.  Leaders of both the parties hoodwink their sincere workers.  Zardari and Nawaz  are hungry of power and do not want to share their enormous wealth lying outside Pakistan with the masses. They have forged an anti-people alliance to protect their own vested interests.  In Punjab when power was snatched by Zardari, the Sharifs cried like anything and created a lot of hue and cry. Overnight they became “revolutionaries” and started reciting the poems of Habib Jalib.   Soon a deal was struck for elimination of all cases against the Sharifs and one by one the courts started obliging the rulers of the day again. This is unfortunate. Our judiciary always play in the hands of the mighty. Everybody knows the  track-record of the Sharifs, whenever they capture state power, they also start flouting rule of law  by showering unprecedented benefits to their cronies. After all, the Chaudhry brothers got all their loans written off when Nawaz Sharif was Prime Minister.

 The main cause of our present day pathetic socio-political and economic situation is existence of slave mentality and the culture of cronyism. The rulers are keen to win the support of Washington rather than serving the people who elected them. Resultantly, we have inefficient, corrupt, repressive and criminal institutions, which do not give a damn for the welfare of the common people. Successive governments’ policies of self-aggrandizement have reduced Pakistan to a State-in-perpetual-conflict. The worsening economic and law and order situation testify to the fact that prosperity and stability cannot be achieved by toeing the policies of the aggressor—getting some bucks for killing own people.

Obviously, if the system is not to sink into greater and greater chaos, corrective actions must be taken before Pakistan finds itself in the unenviable status of a corrupt banana republic (some think we have already achieved this status!). And the starting point is the clear recognition of the role of the State. It should devote its energies to enforcing the laws which protect the public from cheats and racketeers rather than reinforcing the system which encourages them. We need a reliable justice system to clean up the mess. Justice system does not work in isolation. Its establishment requires a bold and clean leadership which restrains the ballooning state and proclaims this unpalatable truth, and sets standards for the rest of the citizenry. And, that is what we lack. Great poet Faiz reminded us aptly:

Nijat-e-deeda o dil ki gharri nahin aayi

Challe challo ke who manzil abhi nahin aayi

So, people of Pakistan, keep on marching as your final destination has yet not arrived. The day the people defeat foreign masters and their cronies, make the leaders accountable and gain full control over the country’s resources, it will be the dawn of the new era of independence in the true sense of the word.

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The writers, tax advisers, are visiting professors at Lahore University of Management Sciences (LUMS). They can be reached through their website www.huzaimaikram.com

Benazir Bhutto: Legacy of struggle

December 27, 2008 marked the first death anniversary of Shaheed Mohtarma Benazir Bhutto, the great visionary leader, who resisted with great courage the agenda of neo-colonial forces—pushing Pakistan to a theocratic State incapable of progressing towards an egalitarian and democratic polity. In recognition of her great services, she was awarded posthumously the prestigious UN Human Rights Award on December 10, 2008. The UN Human Rights Award is given every five years. This year’s award is special as it coincides with 60th anniversary of Universal Declaration of Human Rights.

Huzaima Bukhari & Dr. Ikramul Haq

Professor Amin Mughal, a doyen of progressive humanistic thinking and great scholar, in his remarkable paper, After Benazir Bhutto: Some reflections, read at a meet organised by Campaign against Martial Law, Khalili Lecture Theatre, SOAS, London on 15 January 2008, commented, “I confess, in the least uncharitable terms, that I was never fond of Benazir Bhutto. In fact, I was inimical to her politics. In death, however, she has redeemed herself. In the imagination of the masses she has acquired a mystical significance that is destined to be a never-ending source of inspiration in their struggles ahead. Most authentic martyrs in history were reluctant to die. All of them were, however, prepared to accept death. Benazir went further. Her detractors have accused her of being foolhardy. That is not true. She only embraced what she had in the last days of her life come to perceive to be her destiny. Hers was an act of courage steeled in deliberation and schooled in the imagination. It matters who killed her, but what matters more is that she knew she would be gunned down. Had she escaped death that day, the suicide bombers would have done her in sooner than later. Yet, she decided to take the risk. Again, it matters whether she died of the gun wound or was later levered down into death. But what matters more is that she was there, facing a possible killer. She did not flinch”.  This is perhaps the best tribute to martyr Benazir Bhutto we have read so far.

The act of great courage demonstrated by Shaheed (martyr) Mohtarma Benazir Bhutto praised by Amin Mughal and many others has changed the entire political scene of Pakistan for the worst. For resisting the agenda of forces of obscurantism—working on the dictates of neo-colonial masters—she lost her life. Her removal from the political scene paved the way for the United States to get rid of General Musharraf—a toady no more useful—and installation of elected elements more keen and willing to both toe and implement their agenda. A very few analysts and scholars have tried to view her assassination from this perspective. In her last book, Reconciliation: Islam, Democracy & the West, she “tried to trace the roots, causes, and potential solutions to the crisis within the Muslim world and the crisis between the Muslim World and the West”. Benazir, in this remarkable work has unveiled the agenda of neo-colonialists and the obscurantist. She has quoted extensively from Al Qur’an to prove that Islam is a religion of peace, but it has been brutally abused by a handful of extremists through out the Muslim history to create chaos and disorder. She traced the factors behind the militant Islam and exposed the colonial and neo-colonial forces behind it. These views must have hit hard and annoyed the forces that want to keep the Muslim World in dark ages for their nefarious designs.  They used their proxy—Islamic militants—to get rid of her.   

In the wake of her brutal and ruthless assassination—still shrouded in mystery—there was great euphoria among Pakistani liberals over the presumed ‘return to democracy’. Dr. Sachithanandam Sathananthan, a Visiting Research Scholar at the Jawaharlal Nehru University School of International Studies, in his paper, The Great Game Continues, noted with concern that “they are yet to discover ‘Late Neo-colonialism’.  He argues that removal of Benazir and thereafter, easily maneuvered victory for Asif Ali Zardari in the presidential election “brought to a high point the tortuous process of regime change in Pakistan. Anyone who has followed the ‘colour revolutions’ that installed pro-American rulers in Georgia (Rose Revolution, 2003), Ukraine (Orange Revolution, 2004) and Kyrgyzstan (Tulip Revolution, 2005) could surely not have missed the tell tale signs”.

The theory propounded by Dr. Sachithanandam gets credence in the wake of events taking place after the assassination of Benazir and culminating in the Mumbai carnage.   It is rightly highlighted by Dr. Sachithanandam that “the earliest foreboding surfaced in the backroom manoeuvres by United States (US) and British intelligence services to engineer panic about the security of Pakistan’s nuclear assets. It was a repeat of the duplicitous hysteria they generated over non-existent weapons of mass destruction that Iraq allegedly possessed. A carefully worded article, co-authored by former State Department officials Richard L. Armitage and Kara L. Bue, signalled the shift in US policy. After formally acknowledging then President Pervez Musharraf’s many achievements, the authors continued: ‘much remains to be accomplished, particularly in terms of democratization. Pakistan must…eliminate the home-grown jihadists…And…it must prove itself a reliable partner on technology transfer and nuclear non-proliferation.’ And the denouement: ‘We believe General Musharraf…deserves our attention and support, no matter how frustrated we become at the pace of political change and the failure to eliminate Taliban fighters on the Afghan border.’ Translation: Musharraf has to go”.

It was ‘Washington’s renewed interest’ in Zardari and Rehman Malik and not Benazir that forced Musharraf—once a close friend of Bush—to offer firm opposition to US Late Neo-colonialism to ravage Pakistan. According to Dr. Sachithanandam, “politically challenged Pakistani liberals — a motley crowd that includes members of human rights and civil liberties organisations, journalists, analysts, lawyers and assorted professionals — are utterly incapable of comprehending the geo-strategic context in which Musharraf maneuvered to defend Pakistan’s interest”. So they slandered him an ‘American puppet’, alleging he caved in to US pressure and withdrew support to the Afghan Taliban regime in the wake of 9/11 although in fact “he removed one excuse for the Bush Administration to ‘bomb Pakistan into stone age’, as a senior State Department official had threatened”.

In view of above, it is understandable why Benazir decided to join hands with Musharraf to resist US Late Neo-colonialism. American discomfort with Musharraf’s government was palpable by late 2003, after he dodged committing Pakistani troops to prop up the Anglo-American invasion of Iraq. When he offered to cooperate under the auspices of the Organisation of the Islamic Conference (OIC), naïve Pakistani media and analysts lunged for his jugular, condemning him once again for succumbing to US demands. But in fact he nimbly sidestepped American demands: he calculated that diverse ideological stances of the 57 Muslim member-counties would not allow the OIC to jointly initiate such controversial action and therefore Pakistan’s participation could not arise, which proved correct.

Benazir was fully aware of the fact that Bush Administration had been becoming increasingly hostile to Musharraf’s determination to prioritise Pakistan’s interests when steering the ship of the state through the choppy waters of the unfolding New Great Game, in which the West — led by the US — has been manoeuvring to contain growing Russian and Chinese influences in Central and West Asia. She decided to work with Musharraf, precisely for resisting this agenda of Pakistan-hostile forces. She became the prime target of these forces and was hence eliminated. Since then events show and prove that under the “chosen” leadership, Pakistan would side with enemies of US and Britain in the New Great Game. Benazir became victim of this Great Game in which her own party stalwarts betrayed her.  Hers has been a legacy of continuous struggle. We need to continue her legacy of resisting the ongoing Great Game of US Late Neo-colonialism —controlling of South Asian region through the bogey of Islamic militants and Hindu extremism with ultimate aim of containing China and getting hold of Pakistan’s nuclear arsenals.

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The writers, researchers, historians and authors of numerous books, are visiting professors at the Lahore University of Management Sciences (LUMS). Email: ikram@huzaimaikram.com

Astringent legacy of May 12

Huzaima Bukhari & Dr. Ikramul Haq

May 12 of 2007 and 2008 will be remembered in Pakistani history as a tragic and lamentable day—a dictator with the connivance and support of certain forces managed to frustrate the aspiration of people to see their homeland a place worth living that holds a better future for the coming generations.  The expiry of second deadline of May 12, 2008, after a lapse of mutually-agreed and self-imposed condition of 30 days for the restitution of judges announced in Bhurban on March 9, 2008 and decision of PML(N) to quit from the coalition government may have made the dictator and his cronies happy, but disappointed the entire nation. People are in bewilderment over the indecisiveness of our political leadership (sic) and non-functioning of Parliament above the party lines on this very vital constitutional issue. The failure of long-drawn parleys between Asif Ali Zardari and Mian Nawaz Sharif and their teams in London on May 11, 2008 came as a rude shock for every citizen of Pakistan.

 

It needs to be remembered that Law Minister, Farooq H. Naek, immediately after the announcement of new deadline by Mian Nawaz Sharif in Lahore said “it may not be ‘final’”, yet the PML (N) leadership failed to read between the line messages. PML(N) should have gone for filing a Bill at its own in the Parliament for ‘Restitution of Judges Act 2008’ instead of relying on a “leadership” (sic) that ditched the  most-trusted man of Shaheed Benazir Bhutto, Makhdoom Fahim, on the dictates of Musharraf and handed over all the powers to a never-party-man, Rehman Malik. This was an ugly joke with the die hard party workers and those who made great sacrifices for the Bhuttos. PPPP of the Shaheed Zulfikar Ali Bhutto is different from the PPPP of Asif Zardari. It is thus not surprising that Zardari, Rehman Malik, Farooq Naek et al managed to hoodwink the top leaders of PML(N) by referring the matter to a five-member committee to ponder, deliberate and present a draft, which proved to be an exercise in futility. The delaying tactics employed by Zardari on the issue of restitution of illegally removed judges are deplorable and motivated to merely serve the self-interest of certain quarters. 

Undoubtedly, the political leadership of PPP has once again shown lack of commitment. Mr. Zardari may have many pretexts, valid or invalid, for not following the deadline(s) or deviating from the original declaration, promising the restoration of status quo ante of November 2, 2007 without any conditionality. But the nation will never forgive him for using delaying tactics and openly vowing to retain the judges who supported the dictator on November 3, 2007 and thereafter. 

 

The undoing of patently unconstitutional and shamelessly executed acts of November 3, 2007 and implementation of Murree Declaration of March 9, 2008 have great significance in determining whether 8-year-long dictatorial rule in Pakistan will end or not even after anti-Musharraf verdict of the masses on February 18, 2008. The issue of restitution of judges (reinstatement is a wrong notion as they are still judges) is in fact a question of constitutional survival of Pakistan. In parleys between leaders of coalition partners in London, Dubai, Karachi and elsewhere, the issue reportedly was to devise a “correct legal methodology” to counter the strategy of Musharraf camp to block the move through a stay order. It is not understandable why the political forces are not uniting to impeach the unconstitutionally-imposed President, rather than waiting for his purported further illegal actions.

Illegally removed judges, in fact, never ceased as judges. The question is not that of their reinstatement but ordering of status quo ante existing on November 2, 2007. The Parliament unquestionably and unambiguously under the Constitution has full authority to do so. Unfortunately, the Musharraf camp, with the connivance of certain elements, has managed to create confusion in this regard. Musharraf’s propaganda machine using certain quarters, including some members of legal fraternity, started a debate that in the presence of judgements, namely, Tika Iqbal Muhammad Khan v General Pervez Musharraf and 2 others (PLD 2008 Supreme Court 6) and Tika Iqbal Muhammad Khan v General Pervez Musharraf and others (PLD 2008 Supreme Court 178), it is not possible to restore the judges through passing of a resolution in the Parliament and/or an executive order. These quarters conveniently ignore the fact that these judgements are coram non judice, issued after seven-member bench declared action of November 3, 2007 illegal. These judgements also have no binding force as reached per incuriam in view of ratio decided by the apex court in PLD 1997 SC 351. 

 

On the one hand, it has been recorded that “Prime Minister apprised the President of the situation through the letter of 3rd November 2007″ for imposition of emergency, and on the other, order passed by the Chief of Army Staff is approved, which is self-contradictory. It has not been elaborated under what authority of law Chief of Army Staff imposed emergency on the advice of Prime Minister. It is held that judges “who have not been given, and who have not made, oath under the Oath of Office (Judges) Order, 2007, have ceased to hold their offices on the 3rd day of November, 2007.” Since the Oath of Office (Judges) Order, 2007 is void ab initio, any proceedings taken in pursuance of the same are nullity in the eye of law. No judge can be removed except through the method provided in Article 209 of the Constitution. 

 

Since the judgements of apex court, issued after seven-member bench declaring action of November 3, 2007, are untenable, the restitution of judges, deposed through a law violative of express provisions of the Constitution, poses no problem. The newly-elected parliament by refusing to validate Article 270AAA and passing an Act nullifying the judgement of Supreme Court can restitute the pre-November 3, 2007 judiciary.  The matter is of simple legal nature and should be solved through a legal procedure rather than entering into political polemics and undue controversies. This will not be the first time that the Parliament will nullify a judgement of apex court; it was done in the past by passing a law through simple majority. Numerous precedents are available to this effect, which Mr. Farooq H Naek certainly knows. The act of Parliament will restore the rule of law in its real sense in the country and all the deposed judges will be restituted without any interference on the part of executive. If done through an executive order, it will set as bad an example as one set by Musharraf on November 3, 2007. In future, any Chief of Army Staff or government can resort to such an illegality. 

 

There, however, is no need for any constitutional amendment, for which two-third majority is required, as propounded by Abdul Hafeez Pirzada, Rashid Quershi, Malik Qayyum, Waseem Sajjad, and Ahmad Raza Kasuri et al. The Supreme Court after restitution of pre-November 3, 2007 judiciary will certainly take cognizance of the matter suo moto or on the initiation of aggrieved party [which is public at large] to correct the mistakes committed by their learned colleagues. It will restore the rule of law in its real sense in the country.  All the judges [illegally removed] are still judges as action of November 3, 2007 was declared void ab initio by seven-member bench. The illegally removed judges must assume their offices immediately as soon as an Act is passed by the parliament nullifying the above-referred judgements. In fact, in terms of Article 190 of Constitution, all executive and judicial authorities throughout Pakistan are legally required to act in the aid of Supreme Court. The new government is duty-bound to implement the order of seven-member bench of apex court of November 3, 2007. 

 

However, the issue of ousting of judges, their house arrests, denying them right of free speech and movement and now hindrances in their restitution cannot be examined in isolation. This confirms that as a nation, even after 61 years of existence we have miserably failed to abide by rule of law. At the heart of the concept of democracy is the assurance for the citizens that their affairs are going to be managed by a ‘Responsible Government’ and rule of law will be ensured. If we analyse the Pakistani scenario in the light of the above basic principle, there will be utter disappointment and frustration. The conduct of each government after the death of Father of the Nation was to waste or plunder public money, force the people into international debt enslavement and mercilessly flout all rules and laws. Therefore, if we have failed to establish independent judiciary, true democracy or a responsible Government, it is not surprising. Dispensation of justice is the main pillar of democracy, which is not possible without ensuring independence of judiciary. 

 

Since the bizarre episode of March 9, 2007, there lurks a continuous struggle between the different organs of State to display their muscles and supremacy. Control of State with the barrel of gun cannot be matched by judicial activism.  People’s power alone can counter any unconstitutional or extra-constitutional move. Political leadership with the backing of masses can avert action like that taken on November 3, 2007. Courts are meant to interpret law, whereas enforcing the will of people and countering any despotic rule is always a political question that cannot be solved by the courts. Since our leadership has failed to establish rule of law, the entire society is now in the line of fire. All kinds of conflicts are surfacing for want of rule of law and accountability of those who transgress their limits.

 

The main cause of our present day pathetic socio-political and economic situation is existence of inefficient, corrupt, repressive and criminal institutions, which do not give a damn for the welfare of the common people. Successive governments’ policies of self-aggrandizement have reduced Pakistan to a state-in-perpetual-conflict. The worsening economic situation with poor law and order testify to the fact that progress and tranquility cannot be achieved by merely toeing the policies of aggressors and oppressors. Time has come for political parties to overcome their infightings and on national issue of constitutional revival, join hands against the anti-democratic forces. If Zardari wants to be remembered as a leader of masses, like Shaheed Benazir Bhutto, he should immediately sever all ties with the Musharraf Camp and restitute the illegally deposed judges. He should not forget that denying the establishment of a true democratic structure and independence of judiciary tantamount strengthening the hands of enemies of State. If he is advocate of “changing the system”, he should reconsider hidden (sic!) ties with the “power” if he wants to be remembered as a true representative of the people; or otherwise he will be adjudged by history in the same category as those who joined the King’s party under the banner of PML(Q).

 

Now that Ms. Nilofer Bakhtiar, member of Forward Block of PLM(Q), has filed resolution for restitution of judges in her personal capacity, the Parliament, irrespective of allegiance of individual members for their respective parties, must rise to the occasion—which is their historic challenge – to take the following steps for the restitution of illegally deposed judges, which also takes care of Mr. Zardari’s concern (sic) for “real change” and “truly independent judiciary”:

 

In its resolution, newly-elected parliament denounces all the acts taken on November 3, 2007 and resolves that for a true democratic and constitutional rule, a strong and independent judiciary is a sine qua non. Thereafter, the following bills should be tabled and passed:

 

¤ Bill for ‘High Treason Act 1973 (Amendment Act 2008): This Act amending High Treason Act, 1973 should provide that in case of violation of Article 6 of Constitution, it will be incumbent upon the apex court to take immediate cognizance and direct the Attorney General of Pakistan to initiate trial of offender. Thus in future, the apex court instead of validating any violation of Article 6 will be legally obliged to punish the offender(s). It will send clear message to imposer of emergency on November 3, 2007 to step down voluntarily or face trial for his admitted extra-constitutional acts.

 

¤ Bill for ‘Oath of Judges, Act, 2008′ (invalidating Oath of Office (Judges) Order 2007): By Passing this Act, the National Assembly will pave the way for reinstatement of November 2, 2007 Judiciary and nullify the judgements of apex court, namely, Tika Iqbal Muhammad Khan v General Pervez Musharraf and others (PLD 2008 Supreme Court 178) and Tika Iqbal Muhammad Khan v General Pervez Musharraf and 2 others (PLD 2008 Supreme Court 6). With the passing of this Act, in future no judge will be removed through any executive order or through any law related to oath of judges.

 

¤ Bill for National Reconciliation Act 2008 (NRA): In National Reconciliation Ordinance 2007, Musharraf intentionally excluded cases registered after 12 October 1999 for ulterior motives to exclude Nawaz Sharif and Shahbaz Sharif. In order to create a genuine atmosphere of national reconciliation and put an end to political victimization, this new Act should be passed immediately removing all the time-specific and person-specific provisions in NRO, 2007, which are in direct conflict with the Constitution, and extending its scope to all the persons affected.

 

The above measures will pave the way for a new beginning in this country ensuring the rule of law, constitutionalism, democracy and justice through an independent judiciary.

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The writers (ikram@huzaimaikram.com), tax advisers, legal historians and authors, are visiting Professors of Lahore University of Management Sciences (LUMS).