Supreme court Balochistan recipe by Najam sethi

Taking issue

The writer is Jang Group/Geo advisor on political affairs and host of Aapas Ki Baat on Geo TV

An extraordinary and unprecedented situation prevails in the province of Balochistan. On the surface, it is demonstrated by the Supreme Court’s October 12 interim order that censures the three core power-brokers – the federal government, the military authorities as represented by the FC, Corps HQ, MI and ISI, and the provincial government – for various omissions and commissions that have laid the province low, and nails the provincial government for having lost its “constitutional right to rule”. Underlying the crisis, however, are four distinct and contradictory developments that all power-wielders, including the SC, are loath to address.

The first is the secular separatist movement of Baloch nationalists that was triggered by the rigged pro-Muttahida Majlis-e-Amal elections in the province in 2002 and fuelled by the senseless killing of Nawab Akbar Bugti some years later. This led to insurgent attacks on security forces and ethnic Punjabis in the province and pulled the military and its intelligence agencies into the fray, in turn leading to classic counter-insurgency operations involving unlawful “disappearances”, state-sponsored anti-insurgent lashkars and large scale repression. But the dialectic of the modern nation-state is such that, as long as the unconstitutional insurgency rages, the security establishment will not abandon its unconstitutional counter-insurgency doctrines and methods.

The second is the increasing madrassa-isation or Talibanisation in the province owing to its proximity to Mullah Omar’s Taliban strongholds in southern Afghanistan, which poses a different but equally lethal threat to the stability of the province, both in ethnic terms (the Taliban are Pakhtuns and the nationalists are Baloch) and in political philosophy (the Taliban are Islamic extremists opposed to the US presence in the region and its puppet Karzai regime, while the Baloch nationalists are secular and openly inclined to seek American, and Karzai’s, assistance in pursuit of their separatist goals). But as long as this regional matrix remains, Balochistan will continue to slide into political anarchy.

The third is the persistence of the tribal system in which big and small Baloch sardars and nawabs – reeking of corruption and incompetence – compete for the spoils of office with avaricious and self-righteous Pakhtun mullahs to enlarge their opportunist and ideological agendas respectively. But as long as ethnic passions, the local tribal system and ideological divides persist, there will be no progress in the province.

The fourth is the twist in the tale: the military’s “national security agenda” for Pakistan and the region, in which Islamist non-state actors of certain shades have a role to play in the perceived solution and secularists and democrats are equal parts of the perceived problem. But as long as the military is unaccountably obsessed with its regional “enemy and friends” thesis in a particularly narrow definition of “national interests”, there will be no reprieve.

The SC’s October 12 order seems to acknowledge some such problematic elements and seeks to show the way forward. But it fails to comprehend the multidimensional and interlinking nature of the crisis. That is why, with demonstrably good intentions, it has ended up creating a “constitutional crisis” without offering any enduring political solutions. Consider.

The October 12 judgment makes several interventions. (1) It says the provincial government has failed to protect the fundamental rights of its citizens (law and order, and security) and has, therefore, forfeited its constitutional right to rule and cannot be allowed to continue as a silent spectator to such abuses. (2) It says the federal government has failed to help establish “rule of law” in the province, despite sending in the military to assist the provincial government and that neither government has exercised a range of options available to them singly and collectively.

(3) It says the federal government must ensure “immediate constitutional action to provide security to the people” – (a) by ending overt and covert military operations, directly by the FC and the agencies and indirectly by the tribal lashkars patronised by them; (b) by rehabilitating displaced persons and compensating families of those killed or disappeared; (c) by tightening customs controls over smuggling, especially of vehicles subsequently used in crime; (d) by prohibiting issuance of illegal SIM cards used in crime; (e) by persuading the media not to publish material that incites violence and hatred; (f) by tightening up on corruption among politicians and bureaucrats in the province; (g) by opting for a constitutional amendment to address the sense of economic deprivation in the province; and (h) by holding transparently free and fair general elections that enable alienated nationalist elements to return to mainstream politics.

The administrative options have been clearly spelt out. But the provincial government is unable to implement them. Therefore the SC wants the government thrown out and a “better” one ushered in via new elections or Governor’s Rule (implied). But there’s the rub.

To be sure, the SC has the authority to judge whether an action is unconstitutional or not. It can do so on the basis of a petition by any citizen or the provincial or federal governments. But it cannot transgress the limits of its power by making such a determination off its own bat or by insisting on any particular solution to the violation of certain constitutional provisions. In this case, even if the provincial government has lost its “constitutional credibility” to rule as per the SC, only the provincial parliament or president, on the advice of the prime minister, can change the status quo.

Indeed, in such cases, the determination of the constitutional credibility and right to rule of any government is the exclusive domain of the parliament and the SC can only be asked to step in to challenge or uphold the parliament’s view. It is unprecedented for the courts to demand the ouster of a democratically elected government without recourse to parliament. If this order were to be implemented, what is to stop the SC from sacking governments at will for ostensible constitutional reasons and ordering elections, thereby usurping the prerogatives of parliament?

There is a second equally problematic aspect of the SC’s order. How will a new round of elections automatically solve the problem of Balochistan even if the estranged nationalists were given a level playing field? First, there is no assurance so far that the insurgents are ready to abandon their armed struggle for an independent Balochistan. Second, in view of the four factors outlined above, there is no assurance that a stable, competent and clean provincial parliament will emerge where Pakhtun Islamists linked to the military and secular nationalists alienated from it will rub shoulders with each other and woo a coterie of traditional tribal politicians who swing both ways and are constantly blackmailing and destabilising governments for mundane reasons. Finally, asking for a constitutional amendment to resolve Balochistan’s economic problems assumes a particular national consensus in the federating units and political parties simultaneously, when both are hostage to blackmail and unstable politics in an era of coalition governments.

General elections are around the corner. There is an independent Election Commission that should ensure a level playing field for all in Balochistan. Therefore, there will be occasion soon enough to test the SC’s recipe for restoration of fundamental rights and political accountability. In the meanwhile, both the provincial and federal governments should address the issues raised by the SC. But the SC would do grievous harm to the constitution if it were to cripple the provincial government by significantly restraining it from functioning at the behest of its own parliament or insist on its sacking by the federal government and its replacement by Governor’s Rule.



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