My choice today: Fri 6 June 2008
What about the earlier illegalities?
By Fatehyab Ali Khan
THE goings-on in Islamabad are reminiscent of events of the past. No package designed to right the constitutional wrongs perpetrated in Pakistan can be complete unless it totally repeals the consequences of Yahya Khan’s first Legal Framework Order of March 31, 1969, and the PCOs that were the unconstitutional legacies of Ziaul Haq.
Here it would be pertinent to recall the past and ask how the illegalities of an earlier period impact on the present.
The distortions inflicted on the constitution by Ziaul Haq were far-reaching and the doing of one man. This was something unheard of in constitutional history. A constitution is a consensus document for the governance of a country and not a dictator’s personal statement of power as was the case with the basic law bequeathed by Ziaul Haq. However, none of the Majlis-i-Shoora (parliaments) elected since 1988 ever tried to undo these illegalities and anomalies.
The 1973 Constitution was adopted unanimously by the National Assembly on April 10, 1973, amidst a political tug-of-war, backdoor conspiracies and an attempted army coup. It had federal parliamentary features but was essentially unitary in its working and gave the prime minister supreme parliamentary authority. The president could not promulgate an ordinance even in an emergency.
When Ziaul Haq struck on July 5, 1977, he dissolved not only the National Assembly but also the Senate, which could never be constitutionally dissolved. Thereby, he introduced the basis for a series of subsequent illegalities. Through the Governors’ Oath of Office Order of July 5, 1977, the chief justices of all the high courts became the governors of their provinces and administered the oath of office to the judges of their high courts. Thus the entire judiciary was enslaved.
On March 24, 1981, Ziaul Haq promulgated the Second Provisional Constitution Order which further enslaved the judiciary. The only honourable exceptions who refused to submit to this scheme of things were Justices Dorab Patel, Fakhruddin G. Ebrahim and M.A. Rashid. Since parliament had been dissolved, Zia nominated a Majlis-i-Shoora, sacked Fazal Ilahi Chaudhry and became president himself. Ziaul Haq’s dictatorial steps were resisted by the Movement for Restoration of Democracy (MRD) formed on Feb 3, 1981, which demanded the restoration of the 1973 Constitution but to no avail.
In 1984, Ziaul Haq declared himself elected through a referendum, but did not lift martial law. He made the lifting of martial law hostage to the unicameral assembly endorsing a series of changes in the constitution proposed in his Revival of Constitution Order, 1985, whose validation came to be known as the Eighth Amendment. By amending Article 270 A, he secured blanket cover for all his actions and held non-party elections in 1985.
These elections were boycotted by the MRD and Benazir Bhutto challenged these amendments in the Supreme Court which gave its verdict on three major issues after Ziaul Haq’s death in 1988:
1. Elections are valid only if held on a party basis; non-party elections carry no weight.
2. If the National Assembly is dissolved, elections must be held within 90 days.
3. If the National Assembly is dissolved, the federal government is incomplete without a caretaker set-up.
In view of the foregoing, the following questions of great importance for the country and the constitution arise:
1. Should the protection given in the 1973 Constitution (Article 270) to martial law regulations, martial law orders and presidential orders issued under the first Legal Framework Order of Yahya Khan, be deleted?
2. Was the dissolution of the Senate by Ziaul Haq constitutional?
3. Can a single House elected on a non-party basis amend the constitution and rubberstamp the steps of the martial law administrator?
4. Should the bicameral legislature be renamed ‘parliament’ as it was originally known rather than being called Majlis-i-Shoora as it has been since the Eighth Amendment was adopted?
5. Did the inclusion of provincial assemblies — through the Eighth Amendment — in the electoral college for the president, originally comprising only the Senate and National Assembly, create constitutional anomalies?
6. Should the parallel judicial system introduced by the Eighth Amendment (Federal Sharia Court) be retained?
7. Was making the Preamble and Objectives Resolution a substantive part of the constitution a valid step? Should it be reversed?
8. Should Article 6 of the constitution, which has been suspended and revived at will, and has never been invoked, also be enforced retrospectively?
Under the original 1973 Constitution, elections were held under the system of joint electorates and only the president and prime minister had to be Muslim, with separate oaths of office given in the Third Schedule. The chairman Senate, speaker National Assembly, members of the Senate, National Assembly and provincial assemblies could be of any faith with identical oaths for Muslims and non-Muslims. A non-Muslim could become the chairman of the Senate or speaker of any assembly.
Ziaul Haq unconstitutionally changed both the mode of election from joint to separate electorates and the oaths of offices in the Third Schedule, introducing his own Islam, gender discrimination, hadd, taazir, blasphemy laws and deprived the minorities of their constitutional rights. The oath introduced by him is still part of the constitution. Every member of the Majlis-i-Shoora and all judges of the superior courts are enslaved by this oath.
Any constitutional package, which aims to restore constitutional order and ensure democracy in trichotomy in Pakistan must focus on repealing the Eighth Amendment and Articles 270, 270 A, 270 AA and 270 AAA. These amendments deprived the people of Pakistan of their fundamental rights and provided the basis for further constitutional abuse.
The writer is a senior constitutional lawyer and president of Pakistan Mazdoor Kissan Party.
THOSE who wrote the draft of the Eighteenth Amendment constitution bill ought to take note of its criticism by the Sindh High Court Bar Association. In a resolution passed on Wednesday, the SHCBA’s managing committee raised objections to the proposed amendments to such vital articles as those concerning the trial on charges of high treason of those who violate the constitution as well as the judges who validate these actions. The changes in Article 6 and the insertion of Article 177-A, amending Article 177, have been, in the SHCBA’s opinion “devised to legitimise all the unconstitutional and mala fide acts and decisions” of President Pervez Musharraf and were therefore “not acceptable”. The SHCBA, therefore, dismissed the entire Eighteenth Amendment draft as “a measure calculated to maintain the status quo and delay the reinstatement of the deposed judges”.
There is no denying the competence and sincerity of those in the SHCBA who studied the draft amendment package and came out with an opinion. Now that the differences between the PPP and the PML-N over the judges’ reinstatement are no secret it appears that the SHCBA’s stance is partisan. The point to note is that amendments to the country’s basic law deserve to be studied not from the point of view of transient political controversies but how they will stand the test of time. The PPP package contains some popular demands — like reducing the president’s powers, doing away with Article 58-2b, giving back to the prime minister the power to appoint chiefs of the armed forces and governors, and repealing the Eighth and Seventeenth Amendments. If some elements of the package betray an attempt on the PPP’s part to advance its political interests, the lawyers should identify and reject them or propose amendments. In the draft of its package, the PPP acknowledges that it is not a sacrosanct document and changes can be proposed and made in it. The SHCBA resolution, however, rejects the draft of the Eighteenth Amendment in toto. This is Pakistan’s tragedy. If generals have abrogated constitutions or mauled them, they have also found accomplices among politicians, judges and lawyers. Even now, when the sacred document is proposed to be amended, political considerations, rather than the sanctity of the constitution and the interests of future generations, seem to guide all parties, whether politicians or the legal community. (Daily Dawn)
A credible source in the high command of the PPP has said that President Pervez Musharraf is prepared to leave office in weeks and not months in order to avoid the possibility of any unpleasant confrontation arising out of any attempt to impeach him. Of course, the president’s spokesmen and party loyalists say nothing of the sort is planned and that the president intends to complete his full five-year term. It is also known that the PPP doesn’t yet have the numbers to go after him in parliament and that it might have to wait until next year when the senate elections will provide the magic figure. But given the common anti-Musharraf sentiment in Pakistan, an impeachment would be popular, to say the least. But the PPP says it would rather see him go with “some dignity” if he gives up the presidency voluntarily.
Meanwhile, the opposition, lawyers and a coterie of ex-army officers and bureaucrats are clamouring to have President Musharraf prosecuted for acts of omission and commission when he was in power. Mr Nawaz Sharif and his PMLN followers lead the pack seeking revenge for alleged personal and institutional affronts. Under the circumstances, President Musharraf would do the right thing by surveying the national scene, taking the pulse of the exaggeratedly negative passions of the people at large and decide on his departure well before any move for impeachment is made. We say this because there is a serious problem with an agreement within the ruling coalition on what to do with him once he is out of office.
The motivation behind any attempt by the PPP to agree to impeach him would clearly be its unwillingness to be seen at large as tolerating a personality that its own rank and file do not care for too much. And they have a reason for hating him. One can recall his own negative remarks about the party and Mr Zardari after having signed the National Reconciliation Ordinance (NRO). Unfortunately, there is now a competition in the country on how harshly one can criticise the president, and the PMLN seems to be winning against the PPP. Mr Sharif has made his mind public on what he would like President Musharraf to go through after being deposed. He wants criminal proceedings against him on charges of treason. But as soon as the nemesis descends on President Musharraf, other accusations will surely start piling up too.
The worst part is that President Musharraf’s own erstwhile protégés are now speaking out against him. And the two recent ones who came on TV to bad-mouth him once formed a part of his policy to overload the civilian system with serving and retired army officers on attractive salaries and perks and plots. In this context it would be fair to say that General (Retd) Jamshed Gulzar Kayani, one such greatly favoured recipient, has touched the extreme in his own ham-handed and dishonest way by recommending that President Musharraf be tried and punished for the 1999 coup, for Kargil, for Lal Masjid etc. No one has bothered to ask him why he didn’t resign if he had disagreed with President Musharraf’s policies. Indeed, no one has bothered to list the favours he received as a key member of President Musharraf’s team when all these events took place. Another general, General (Retd) Abdul Qayyum, who got the lucrative post of chairman of Pakistan Steel Mills, has already recommended the registration of an FIR against him. General (Retd) Asad Durrani, who served as his loyal ambassador, and General (retd) Moinuddin Haider, who was his interior minister and also governor of Sindh province, are also in an unforgiving mood. President Musharraf did not listen to anyone when he was being advised not to bung the civilian bureaucracy with his buddies from the army. Now the same buddies are baying for his blood. Another gathering of retired generals has suggested an even more terrifying fate for him, notwithstanding the fact that many of them should have faced accountability for their own deeds when they enjoyed offices of power in the country.
The regime of President Musharraf had two generally accepted successes to its name — foreign policy and the economy — which actually started to sour gradually over a period of time till they reached collapse by the end of 2007. His foreign policy got stuck regionally when he could not decide to break the fetters of the old routine towards India despite his “out of the box” approach, and he kept losing ground against the rising tide of terrorism in Pakistan and its spill-over into Afghanistan. He also made a great mistake when he didn’t listen to criticism against Mr Shaukat Aziz, his finance minister and prime minister, for recklessly opting for a model of short-term growth that was unsustainable in the medium term. World Bank officials say that they told Mr Aziz that he would get into trouble with the energy situation following the high growth rate that the country was posting.
Therefore the fact that the PPP is willing to give him an honourable exit is good news because Pakistan has the reputation by now of fouling up all kinds of accountability. Both the mainstream parties did it to each other until their conscience forced them to repent. Pakistan’s foreign friends are already inclined to advise moderation in this regard. And once Mr Musharraf is gone from the corridors of power, the performance or lack of it of governments in the post-Musharraf period will finally help the passionate people of Pakistan to decide whether his role in the country’s history was wholly negative or partially positive. (Daily Times)
Dr AQ Khan’s recantation
Pakistani nuclear scientist Dr Abdul Qadeer Khan told the US media on Tuesday that “he was not responsible for passing nuclear secrets to Iran and Libya”. He said he had introduced Tripoli and Tehran to Western businesses that provided information on building a nuclear weapons programme. But it is not too long ago — in fact it was in February 2004 — that he had sung a different song, that he had run a network that passed atomic secrets, equipment and technological advice to Iran, North Korea and Libya over a period of 15 years. He now says he had merely given Iran and Libya “small advice” on where to acquire the technology from.
This recantation is difficult to swallow for most half-informed people. But Pakistanis are likely to swallow it because he is after all the “national hero” and the great “mohsin” or benefactor of the population of Pakistan. The problem is that his latest “modification” is not going to convince anyone in the world outside, including the IAEA, where he is regarded as a big spider in the middle of a web of nuclear contraband at the global level. The coalition government may reinstate him — “restoration” and “reinstatement” is the passion these days — but it will have problems getting the world to accept him back as a normal scientist. (Daily Times)