The Daily DAWN, January 17, 1999

                   IN his extraordinary proxy letter to the supreme court the prime minister talked of normal legal
                   processes being hazardous and inadequate for abnormal times. That was meant to be an argument for
                   departure from those normal legal processes. But before that is conceded there are doubts to be
                   cleared.

                   If the times are all fouled up the question is why not address the factors responsible for it rather than
                   take the distortion even further and screw up the legal processes as well? If one abnormality is to be
                   met with another, human experience is, that process never stops. Or it does when it crashes against a
                   vast accumulation of abnormalities.

                   Unfortunately the abnormality of the present times that the prime minister now acknowledges is largely
                   his own and his government's creation. He launched on it almost from the beginning. He seemed to have
                   started with the resolve to handle things more purposefully this time round to do it in ways to make this
                   tenure of his as safe for himself and as subject to his will as possible. Considering how the earlier
                   governments had ended up and how he himself had behaved in the opposition, the resolve cannot be
                   much faulted. But there was a bit of an overkill.

                   He touched almost nothing that he didn't queer up in its consequences to himself and his times. Whether
                   it was the judiciary or the parliament, his relations with his political allies of his key appointments in the
                   hierarchy, his comprehension of the federal sensitivities or his view of the place of the senate, his dealing
                   with the opposition or his tactics in relation to the sources of tendencies like fundamentalism, jingoism
                   and intolerance - rarely was he playing by the rules or tradition or requirements of longer-term good
                   sense much of a scruple. Things then had to begin coming home to roost.

                   The prime minister once boasted that whoever came into conflict with him got defeated. Perhaps yes,
                   touch wood. But it is this desire above all others, to be always a victor and on his own terms, that has
                   caused his times to become so wonky. He will not help matters now by persisting in that attitude. And
                   even his luck can run out.

                   There wasn't much wrong with his party; PML, making common cause with MQM at the start in Sindh.
                   That was the only way to outflank PPP. And that's how the game of politics is played. But when one
                   has to shift from being an agitational opposition with a single-point agenda to governing a province, one
                   has to try and learn to see beyond one's nose. More so against a background like Karachi's.

                   Peace in Karachi had to be the principal element of the compact with MQM whatever it took. MQM
                   would have needed power to go with the responsibility. That had to be conceded. It was inherent in the
                   logic of its numbers too. But Mian Nawaz Sharif, ever wanting to win on his own terms, was ready to
                   promise almost whatever that party asked (and mostly in IOUs) but not power. To this day he absurdly
                   claims that he sacrificed his own party's government to impose governor's rule. He cannot see that it
                   was just because of this insistence on his party's holding all the levers that the province had eventually to
                   be brought under governor rule. That was only how he could continue to rule over it from Islamabad.

                   It is no argument that MQM could not be trusted with power even in partnership considering its
                   reputation of involvement in terrorism. It should not then have been wooed in the first place. You could
                   not have it both ways, stultify the party and yet use it. Mian Nawaz Sharif in short again tried to lay
                   down his own rules. He couldn't succeed. That was one opportunity lost, one possibility of normality
                   scuppered.

                   From one abnormality to another. Not all the legal brains in the government could see (or, more likely,
                   had the courage to say) that it was one thing to call the military to the aid of the civilian authority but
                   quite another to have it set up courts to try civilians and sentence them. When the supreme court pointed
                   out to the attorney general the other day that there were earlier judgments against the setting up of a
                   parallel judiciary the latter tartly remarked that these military courts were only temporary. A temporary
                   breach of rules apparently in the gentleman's view wasn't breach of rules. Not even if the temporariness
                   could hand out to people something as permanent as death. Then, how temporary is temporary?

                   Similarly, when the court asked about the justification of the official notification suspending the powers
                   of the Sindh assembly's speaker and deputy speaker, the country's principal law officer explained that
                   the assembly's meeting could have created problems for the government. In other words, the laws and
                   the constitution of the land were of secondary importance, what suited the government was what
                   mattered.

                   There is another current example from outside Sindh of how lightly this government takes departures
                   from norms and normality. This relates to its decision to call a joint session of the parliament just
                   because it did not have a majority in the senate and it feared that the ehtesab ordinance that it was keen
                   on would not get past that house.

                   It didn't matter to it that the tactic was a brazen violation of the letter and spirit of the constitution. As
                   everywhere else in a bicameral system, a legislation has to be passed by both the houses to become law.
                   The provision of a joint session is made only to cater for a situation where a bill passed by one house is
                   either amended by the other or is delayed for more than a specified period of time. A delay caused by
                   the deliberate default of the government is of course not a delay by the volition of the house and cannot
                   very obviously attract the special provision of the joint session.

                   Yet the government ignored all the protests and the pleas on behalf of constitutional propriety just in
                   order to bypass the test of the independent will of the senate. It could do so because it had the
                   advantage of a majority in a joint session. it did not matter to it that it was thus striking a blow at the
                   principle of bicameralism and federalism and that it was setting a pernicious precedent for the future.

                   But back in Sindh, the government has landed itself in quite a snafu there, though it doesn't sufficiently
                   realise this. The court has restored the assembly's right to meet and pass legislation. It cannot pass
                   resolutions, but it can make legislations serve just that purpose. The federal parliament can of course,
                   because of the state of emergency in the country and governor rule in the province, countermand the
                   provincial legislation with a superseding legislation of its own but the provincial move will nevertheless
                   have served the assembly's purpose to the extent that any resolution would. There may indeed ensue a
                   war of legislations between Islamabad and Karachi, but with Islamabad perhaps always needing a joint
                   parliamentary session at 90-day intervals.

                   If the supreme court finds the military courts permissible, that too is unlikely in the longer term to serve
                   the government's purpose. The hanging spree may indeed have brought some peace, but that in all
                   probability is because the real terrorists have seen wisdom in lying low for the time it lasts. And it cannot
                   last indefinitely, even though one doesn't have to take the attorney general's word for it. The military
                   itself cannot feel happy at being put to use as a hangman. On a country-wide basis too, if the interior
                   minister has his way. That cannot do the military's image much good. It also has its own responsibilities.
                   The terrorists look almost certain to resurface in their own good time if other methods are not adopted to
                   tackle them.

                   Those other methods are of course the normal processes that the prime minister considers inadequate
                   and hazardous. First, the criticism of it may be all right but the country's judiciary should also be helped
                   to strengthen and reform itself. Some of the ways of doing this was suggested by the Law Commission
                   about two years ago. Failures of the courts are in large part failures of the investigation machinery. Also,
                   if the judges have been reluctant to hear cases of terrorists, as the prime minister has complained, this
                   obviously has something to do with the law-and-order machinery's inability to provide them necessary
                   security. A Riaz Basra can bolt from police custody, and later several of his companions can break the
                   Dera Ghazi Khan jail, with impunity and nothing can be done then or afterwards. A government that
                   admits its inability ever to keep criminals safely locked up and thus feels obliged to hand over the
                   responsibility of terrorists to the military puts its title to rule in serious doubt.

                   Secondly, it is commonplace that terrorism in the country is not just a law-and-order issue. It has political
                   and theocratic dimensions. This has to be tackled politically. It requires a combination of flexibility and
                   firmness. Representative elements have to be negotiated with and unrepresentative ones isolated. This
                   needs skills and a will that the prime minister has unfortunately shown neither much capability nor
                   passion for. He cannot here insist on winning on his own terms.

                   The times may not be normal, but they can be best put to right by known normal methods, with perhaps
                   a measure or two of added seriousness. The courts in the past did great disservice to the cause of
                   democratic governance in the country by making a so-called law of necessity the adoptable mother of
                   every would-be despot's illegitimate ambitions, expediency or self-made crises. That tendency dies hard.
                   It has to be squashed. No departures from the norm from the laws and the constitution should be
                   permitted on the grounds of emergency or abnormality or extraordinary circumstances. Only when that
                   happens will rulers in this country begin to get out of the habit of ruling by adhoc measures and pleading
                   inadequacy of normal processes.