A moment of truth

THE much-awaited general elections are now at our very doorsteps. And yet, the country appears neither excited about the event nor hopeful of improvement after this important exercise. This is, of course, deeply disappointing, for after all elections are meant to bring about the kind of change that people desire.

What explains the current national malaise that ranges from apathy and resignation to suspicion and distrust? The Election Commission claims that its arrangements for free and fair elections are in place, while the caretaker government is reiterating that it will not permit any disruption of the electoral process. Nevertheless, many political leaders and human rights activists harbour deep doubts and suspicion not only about the conduct of the elections, but more importantly, about the president’s role in the post-election scenario.

Pakistanis recognise that the coming elections may be the most critical in their turbulent history. It could well be their last opportunity to regain lost rights. Some analysts are comparing the current situation to the period prior to the 1970 elections, the results of which were so upsetting to the then military ruler that he chose to plunge the country into civil war, rather than hand over power to elected representatives. The rest, as they say, is history and a painful one at that.

In this atmosphere of deepening gloom and despondency, even government supporters appear to have lost their bravado and are no longer speaking of victory. Some of their luminaries have abandoned the party and sought refuge in the tents of their erstwhile opponents. Others are seeking to avoid identification with their erstwhile leaders. Not surprisingly, the party’s rank and file appears disillusioned.

In fact, the past year has been all downhill for the president and those who had hitched their destinies to his star. Starting with the failed attempt to oust the Chief Justice and culminating in the tragic assassination of Benazir Bhutto, nothing appears to have gone right for him. Mistakes have been so many that it appears to be the season of follies.

Consequently, the domestic scene has never been as chaotic and confused as it is today. Many of the parties have chosen to stay away from the polls, convinced that ‘hidden hands’ are determined to play games perfected over the years. The two mainstream parties, though participating in the polls, are already crying foul and with good reason. They are deeply sceptical of the intention of the rulers. The former Q League ministers continue to wield enormous influence and even the pretence of neutrality was not observed in the selection of the caretakers.

This has led to widespread fears that the elections may not be free and fair and even if they are, an effort may be made to encourage horse-trading to get the elected representatives to change party loyalties as was witnessed in the aftermath of the 2002 elections. (Notwithstanding this exercise, Zafarullah Jamali was able to scrape through with a single vote). But such an exercise would be playing with fire.

The elected representatives must be allowed to elect the country’s new leader, as well as to engage in the legislation necessary to rid the Constitution of controversial laws, introduced by military rulers. It is the parliamentary nature of our Constitution which is the cementing factor in safeguarding the federation. In fact, the next parliament must endeavour to meet the demands of the minority provinces and accept the degree of provincial autonomy repeatedly promised to them.

It is not only the frightening collapse of state institutions but also the much hyped economic ‘miracle’ that has turned out to be a mirage, as all such flights of fancy are. These have not only left the people deeply disillusioned and angry, the international community too is concerned about Pakistan’s current travails. The two most worrying factors are Pakistan’s possession of nuclear weapons and its perceived role as the ‘epicentre of global terrorism’.

To this must be added the absence of democracy, even though this is used by foreign governments only when it serves their purpose. This was evident in the Indian national security advisor’s recent remark that India faces threats from countries that are ‘authoritarian, anti-democratic and anti-secular’. He added, for good measure, his concern over risks from nuclear weapons in the hands of ‘volatile states’.

It is somewhat ironic that though Pakistan has contributed more than any country to the global war on terror and, in the process, suffered grievously, there is no end to the demand to ‘do more’. This unceasing pressure has intensified in recent times, causing the government considerable embarrassment and unease.

In one of its issues last October, the weekly Newsweek called Pakistan ‘the world’s most dangerous place’. And in its first issue of the year, the Economist had a picture of a ticking bomb on its cover, while its lead story spoke of Pakistan in apocalyptic terms. Only a few days ago, US Defence Secretary Robert Gates reiterated that the presence of extremists in Pakistan was not just a ‘nuisance’, but a potential ‘threat to their government’.

It seems that irrespective of what we do, the West is not satisfied. At the same time, military operations in the border areas have created a groundswell of anger and alienation against the government’s policies, leading many Pakistanis to view this campaign as inimical to the national interest. This is deeply regrettable because while one may not agree with the US approach, it needs to be recognised that extremism is a scourge to be combated forcefully. Nevertheless, our open-ended commitment to the American agenda threatens to tear the country apart.

For the past year, Pakistan has been going through a crisis of legitimacy that threatens not only its institutions but the state itself. An unprecedented polarisation has afflicted the entire body politic of the country. Deep differences have emerged among individuals, groups and organisations that could tear apart the fabric of the state.

It is now time for compromise, compassion and tolerance wherein the slights and insults of the past are no longer nursed to wreck the nation, but become a balm to heal wounds. The challenge is to ensure that Benazir Bhutto’s supreme sacrifice is not allowed to go to waste, nor Nawaz Sharif’s strong and principled leadership lost sight of. In fact, his pledge to restore the judiciary has in it the seeds of genuine redemption that could restore the faith of citizens and resurrect the dreams of our founding fathers. The forthcoming elections are surely a moment of truth for us all.

Who can alter Basic Law?

WITHOUT even entering into the controversy of the legality or justification of the Proclamation of Emergency on Nov 3, 2007, and the PCO, the legal effect of its revocation on Dec 15, 2007, and the repeal of the PCO need to be clearly examined.

One may recall here the two earlier occasions when extra-constitutional measures were taken by the armed forces which held the Constitution in abeyance and the Supreme Court took steps to give them conditional validity. In fact, the seven-judge bench including the Chief Justice appointed under the PCO held in its order of Nov 23, 2007, that the situation prevailing on Nov 3, 2007, was similar to the one existing on July 5, 1977, and Oct 12, 1999.

The order relied on the precedents of Begum Nusrat Bhutto v. Chief of Army Staff, and Zafar Ali Shah v. Pervez Musharraf, while validating the instruments issued on Nov 3, 2007.

In Nusrat Bhutto’s case, the court had held that the Constitution still remained the supreme law of the land and proceeded to validate the military take-over describing it as an extra-constitutional deviation for a limited period. It held that during this period the CMLA was entitled to perform all acts which could have been done under the Constitution, including the power to amend it for the good of the people.

Indeed, several amendments in the Constitution were introduced by Gen Ziaul Haq in his eight-year martial law, most of them through the Revival of Constitution Order (RCO) — PO XIV of 1985, promulgated on March 2, 1985.

This Order in its schedule carried all the ‘amended’ provisions ordained by the general and also proposed a new Article 270-A purporting to validate all legislative and executive measures taken by the martial law regime. However, soon enough it was realised that the limited authority conferred by the Supreme Court did not enable one individual to make permanent changes in the supreme law of the country.

Therefore, all the amendments introduced were duly placed, deliberated upon and adopted with modifications by the Constitution-amending body, that is, the newly elected parliament. Each House passed the Constitution (Eighth Amendment) Act by two-third majority on Nov 23, 1985. Article 270-A as contained in the Act expressly ‘adopted and affirmed’ all constitutional amendments including the RCO itself.

It is only on account of adoption of the amendments by the Constitution-amending body that the Supreme Court found it possible to uphold them in Mahmood Achakzai’s case.

In Zafar Ali Shah’s case, a military take-over was similarly validated on the basis of the doctrine of state necessity. A timeframe for reverting to a constitutional government was prescribed and the chief executive was likewise given limited authority to amend the Constitution. General Musharraf also made some amendments through the Legal Framework Order 2002 (LFO) introduced in Aug 2002 before holding general elections.

This time a crude attempt was made by some of his advisers to let the ‘one-man amendments’ be treated as a fait accompli by circulating altered copies of the Constitution to newly elected members. Nevertheless, right at the time of taking oath some members not supporting the King’s party refused to accept any Constitution that did not exist on Oct 12, 1999.

The deadlock was finally resolved through negotiations and has been recorded in book form by a PML-Q senator and senior advocate S.M. Zafar. All the amendments purportedly introduced through the LFO were placed before the two Houses of parliament and approved through the Constitution (Seventeenth Amendment) Act on Dec 31, 2003. Article 270-AA adopted and affirmed the PCO.

The position that emerges is quite clear. In the cases of Nusrat Bhutto and Zafar Ali Shah as well as in the recent decision, the consistent view of the Supreme Court has been that the Constitution is a supreme law and some deviation has been found permissible on grounds of state necessity.

In the precedent cases, the scope of the powers available to the CMLA/chief executive during the period of such deviation was discussed. The Laws (Continuance in Force) Order and the Provisional Constitution Order issued on both earlier occasions provided that the country would be governed as nearly as may be in accordance with the Constitution.

It was in this context that limited power to amend the Constitution during governance in the deviation period was conceded to a particular individual. It may be appropriate to quote the following pre-requisites laid down by Irshad Hassan Khan CJ for the invocation of the doctrine of necessity in Zafar Ali Shah’s case:

“The court is hereby faced with an extra-constitutional situation and (in view) all the elements, namely, inevitable necessity, exceptional circumstances, no other remedy to apply, measure taken must be proportionate to the necessity and it must be of temporary character, limited in duration to the exceptional circumstances … the Constitution provided no solution to meet the extraordinary situation prevailing on Oct 12, 1999.”

The Constitution is a sacred covenant amongst the people of the country requiring a strict mode of alteration. It can be amended only by a two-third majority of the total membership of each House of parliament, one elected on population basis and the other granting equal representation to federating units. On no pretext could a permanent change in the Constitution be countenanced either at the behest of the president or a court.

It is, therefore, evident that the power to amend the Constitution referred to in the cases of Nusrat Bhutto and Zafar Ali Shah was only meant to extend to the period of constitutional deviation and the amendments introduced would only have effect up to such period alone.

It would otherwise be ridiculous to assume that though the chief of army staff issued a Proclamation of Emergency to deal with a particular situation, he can completely deface the Constitution and then revoke the Proclamation within a couple of days after imposing a new basic law.

(To be continued)

The writer is a retired judge of the Supreme Court of Pakistan.

Balochistan’s prisoner of conscience

NELSON Mandela who was arrested in 1964 was convicted of sabotage and treason and sentenced to life imprisonment by the Apartheid regime of South Africa. But the world’s most respected and admired statesman — who later won the Nobel Peace Prize — was fortunate that his trial was not held inside the prison. No anti-terrorism court tried him nor was he thrown into an iron cage.

Mandela and his companions were tried in a proper court room. His wife, mother, friends, journalists and supporters were allowed to witness the court proceedings.

Though the Apartheid regime employed the worst form of racial discrimination against native South Africans, no political activist of the ANC went missing or ‘disappeared’ during the struggle against the racist regime. But Akhtar Mengal, a well-known and respected Baloch nationalist, has not been so lucky. For some people in Balochistan he has the status that Mandela had in South Africa.

He has been kept in solitary confinement in Karachi since December 2006. Akhtar Mengal has not been tried in an open court. His trial is conducted inside the prison. No one except one person from his family is allowed to witness the court proceedings. Mr Iqbal Haider, secretary-general of the Human Rights Commission of Pakistan, witnessed the first hearing of his trial in Karachi prison on special request, and this is what he saw: “Mr Mengal was brought into the courtroom and shoved into an iron cage with bars all around that stood in a corner away from his counsel.”

Akhtar Mengal is not the only political prisoner from a smaller province who has been humiliated or treated as a second class citizen. A number of Baloch, Sindhi and Pashtun leaders have been detained and humiliated repeatedly in the last 60 years.

Veteran Baloch nationalist Sardar Attaullah Mengal, Nawab Khair Bux Khan Marri, Khan Abdul Wali Khan, Mir Ghous Bux Bizenjo, Sher Mohammed Marri and Mir Gul Khan Naseer have spent years in prison for being insubordinate to the establishment.Akhtar Mengal, president of the Balochistan National Party (BNP) and former chief minister of Balochistan, has been under detention since Nov 2006, and has been denied justice through delaying tactics. Mengal has not been arrested under corruption charges nor has he been charged with misuse of power. He is not an industrialist who is a bank defaulter. Neither has he been involved in any land scam like many other pro-establishment politicians of the country. He is facing trial for the brief ‘abduction’ of two undercover agents of security agencies.

Mengal’s prolonged detention, mortification and the delay in the dispensation of justice has exposed the inequality that characterises our system. They also point to the inability of our courts to act independently without being influenced by the powers that be.

The Constitution guarantees that “All citizens are equal before law and are entitled to equal protection of law.” The International Convention on the Elimination of All Forms of Racial Discrimination also emphasises “the right to equal treatment before the tribunals and all other organs administering justice”. However, the Baloch have not been treated according to national and international laws. Constitutional guarantees and the courts have failed to protect their fundamental rights.

Akhtar Mengal along with 500 BNP activists was arrested in Nov 2006, a day before President Musharraf’s visit to Balochistan. The mass arrests were aimed at stopping the BNP from protesting peacefully against the military operation, widespread arrests of activists and their enforced ‘disappearance’.

According to Mr Mengal, his family had been receiving threatening phone calls since the beginning of the military operation in the province. Due to the gravity of the threats he would personally drop his children to school. On April 5, 2006, some unknown persons followed his car presumably to kidnap his school-going children. He stopped his car and asked them who they were. They refused to give any satisfactory answer. Considering this a security issue, Akhtar Mengal’s security guards picked up the two riders of the motorcycle and took them back to the Mengal residence intending to hand them over to the police. At this stage, the two admitted to being army personnel.

Almost immediately, a large party of law-enforcement agency men arrived on the spot and took away their two colleagues who had been picked up, and laid siege to the house and its occupants.

On the intervention of the Sindh chief minister, it was agreed that no case would be filed if Mr Mengal’s guards who were involved in the case were handed over to the police for questioning. At a later stage, it was discovered that a havaldar of the Pakistan army had filed an FIR against Akhtar Mengal and his four guards, who were voluntarily handed over to the police. Yet Akhtar Mengal remained free till Nov 28, 2006, when the Balochistan police arrested him, along with senior members of his party.

Since then, all proceedings are being conducted in camera. Repeated humiliation of the Baloch and their political representatives will intensify the animosity felt by the troubled Baloch population. The judiciary’s tilted role and the unproductive hearings of the ATC have already shattered the credibility of the bench.

Akhtar Mengal, as a senior leader of a political party, is entitled to all basic rights and facilities. But he has been denied basic legal and human rights because of his political affiliations. The large number of political activists in Balochistan, who have been detained and denied legal and prison rights, are entitled to just treatment in accordance with UN conventions. The government of Pakistan must abide by the laws of the country and international law and respect the rights of the Baloch. There should be an end to the injustice, intimidation and harassment being meted out to them.

US civil rights leader Martin Luther King had stated in a letter from Birmingham jail to his friends, “Injustice anywhere is a threat to justice everywhere.”

The writer is a member of the Senate.

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