The Broken Pledge

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Benazir Bhutto’s assassination on 27 December 2007 capped a year conspicuous by violence and political uncertainty. Amendments to the Constitution to give legal cover to arbitrary acts by the executive further complicated the situation. The crimson stain of anarchy spread far and wide across the fabric of Pakistani society.

The Pakistan Institute for Peace Studies reported that in 2007 the country witnessed 1503 incidents of violence involving terrorist attacks as well as political and sectarian clashes.  These resulted in 3,448 deaths and 5,353 injuries and represent an increase of 128 and 491.7 percent over the 2006 and 2005 figures respectively. There were 60 suicide attacks causing 770 deaths and 1,574 injuries. The casualty figure from 12 political clashes stood at 64 killed and an equal number injured.

Security personnel were specifically targeted in several terrorist attacks killing 232 soldiers, 163 para-militias and 71 policemen. The Lal Masjid operation was carried out in July and in that month 15 suicide attacks were known to have occurred in the NWFP, Islamabad and the Punjab in which 191 persons lost their lives and another 366 were injured.

These figures, like all statistics, are impersonal and can never portray the anguish of an entire nation which is home to more than 160 million people whose yearning for peace and stability seems to be as elusive as a mirage on a scorching wilderness. The unbridled reign of terror snuffs out the hope of a stable pluralistic political order in the absence of which sustained economic growth is not possible.

Although Pakistan’s post-independence experience has been marked by political turbulence, the impact of recurring terrorist violence, particularly after 9/11, has been devastating, More than sixty years have passed since its emergence as an independent state and yet the country still gropes for a durable political system with obvious implications for its economic development. In half this period, war-devastated Europe, East Asia as well as other regions transformed themselves into the economic dynamos of the world. But Pakistan still does not know how it will govern itself. Constitutions have been promulgated only to be abrogated. The existing basic law has been mutilated and amended seventeen times and today it is no longer the same constitution that was enacted in 1973.

A nation that does not learn from history is likely to repeat the mistakes of the past. Soon after the imposition of emergency on 3 November 2007 and the suspension of the 1973 constitution under the Provisional Constitution Order, President Musharraf declared in a television interview that “the country is more important than the constitution or democracy.” According to an analysis featuring in The News of 22 November 2007, similar disdain for the constitution was expressed by military rulers of the past such as Iskander Mirza, Yahya Khan and Zia-ul-Haq although all of them had vowed:

I…do solemnly swear that I will bear true faith and allegiance to Pakistan and uphold the Constitution of the Islamic Republic of Pakistan which embodies the will of the people, that I will not engage myself in any political activities whatsoever and that I will honestly and faithfully serve the Pakistan Army (or Navy or Air Force) as required by and under the law.

The pledge was repeatedly broken and, more often than not, under the pretence of salvaging the country from self-destruction.

Thus on 7 October 1958 Governor General Iskander Mirza abrogated the 1956 Constitution which had taken nine years to draft and bring into force. He imposed martial law under general (later self-appointed field marshal) Ayub Khan and stated “it is said that the constitution is sacred, but more sacred is the country and welfare and happiness of the people.” This became the familiar refrain of autocrats whose motives were no higher than the prolongation of their regimes.

Ayub Khan’s 1962 Constitution which imposed a presidential system of government on the country was, in turn, abrogated by General Yahya Khan on 25 March 1969 who claimed to have taken over the government because of Ayub’s failing health. His short rule resulted in the creation of Bangladesh from the eastern wing of the country.

Zulfikar Ali Bhutto succeeded Yahya initially as the country’s first civilian martial law administrator but later reverted to the parliamentary form of government under the unanimously approved 1973 Constitution. Bhutto was ousted by General Zia-ul-Haq on 27 July 1977 and the Constitution of 1973 was held in abeyance. In his first press conference, Zia-ul-Haq declared:  “The Constitution is just a scrap of paper which can be thrown in the dustbin at any time.”

These arbitrary acts by the executive have, as the constitutional history of Pakistan demonstrates, often been justified on dubious legal pretexts. Thus in the Maulvi Tamizuddin Case of 1955,  the Federal Court under Justice Muhammad Munir upheld the dismissal of  the constituent assembly by governor general Ghulam Muhammad. The Chief Court of Sindh had earlier pronounced against the dismissal citing provisions of the Government of India Act, which served as the interim constitution of the country. This was rejected by the Federal Court on the grounds that the Government of India (Amendment) Act 1954 had not become law as it had not received the assent of the Governor General

However it was in the Dosso Case of 1958, that the infamous Doctrine of Necessity was first invoked by the judiciary. A well argued editorial in the Daily Times of 25 November 2007 recapitulates that this theory was first enunciated by Hans Kelsen (1881-1973) in his 1949 study Theory of Law and State in which he expressed the opinion that “a successful revolution is a law creating fact.” What the editorial did not say was that long before Kelsen’s time, William Pitt declared in the House of Commons on 18 November 1783 that: “Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.”

The essence of the Dosso case was that the respondent had been convicted by a Council of Elders under the Frontier Crimes Regulation and this was set aside by the Quetta Bench of the West Pakistan High Court on the ground that it violated Article 5 of the 1956 Constitution. The Supreme Court, under Justice Munir, upheld the earlier conviction through a majority judgement on the ground that the Constitution was no longer in force thereby validating Iskander Mirza’s abrogation of the 1956 Constitution. Justifying the judgment, Justice Munir, borrowing from Kelsen, stated that “an abrupt political change” was, in effect, a revolution which created its own legality. Thus legitimacy was accorded to the Iskander Mirza government which, ironically, was ousted by Ayub Khan a day after the judgment was delivered. The dissenting voice in the Dosso Case was that of Justice A.R. Cornelius.

The judicial history of Pakistan also shows that the Supreme Court has not been entirely consistent. In the Asma Jehangir case of 1972, it declared Yahya Khan a usurper after he was no longer in power though in 1969 it had accorded legal validity to his rule. Chief Justice Hamoodur Rahman ruled that Ayub Khan did not have the authority to hand over power to the armed forces.

The 1973 Constitution has outlived its predecessors though, since its adoption,  it has been held in abeyance, suspended and undergone several amendments designed more to promote the political ambitions of leaders, civilians and military alike, than for the betterment of the country. Thus in the third week of November 2007, President Musharraf brought about seven further constitutional amendments primarily to validate his proclamation of emergency and the Provisional Constitution Order as well as to legalise the suspension of the constitution. Under the amendments all acts done by the president and the chief of army staff cannot be challenged in any court of law. A Federal High Court was established in Islamabad and the Supreme Court was empowered to withdraw and dispose any case being heard by the High Courts. The number of Election Commission members was also increased from four to five in addition to the Chief Election Commissioner. Finally, the Supreme Court judges who had taken oath under the PCO were deemed to have done so under the constitution while those who had not were considered to be no longer holding office. Thus a “new” Supreme Court minus the independent minded judges who had reservations about the president’s 6 October 2007 re-election from the truncated national and provincial assemblies that were about to complete their terms emerged.

On 23 November 2007 a seven-member bench of the Supreme Court validated the imposition of emergency and the Provisional Constitution Order in a three page judgement on the grounds of necessity stating: “when the constitution provided no remedy or satisfactory solution to an issue threatening national security the doctrine (of necessity) can be invoked…..terror attacks, suicide bombings and kidnappings had rendered the situation in Pakistan very unstable, but that the government had been hampered by activist members of the judiciary.”

In its short order, the Supreme Court validated, in its own words, the “extra-constitutional steps” taken by the president. A controversy has thus unwittingly been created on the difference between “extra-constitutional” and “unconstitutional” actions by the executive.  No matter how sympathetic to the executive a superior judiciary may be it can only be supportive to an extent. The validation of the 3 November emergency is on “condition that the country shall be governed, as nearly as may be, in accordance with the Constitution.” The vagueness of the formulation is again fraught with the possibility of generating bitter controversy.

Furthermore, the Supreme Court order states that: “In the absence of the Parliament, General Pervez Musharraf, Chief of Army Staff/President….may perform: All acts or legislative measures which are in accordance with , or could have been made under the 1973 Constitution, including the power to amend it.” The judgement is silent on whether such amendments require approval by a two-third majority in the legislature as per the stipulations of the constitution.

The attorney general of Pakistan subsequently declared that the issue had been permanently settled and could not be torpedoed by a future parliament.  The assertion defies all normative parameters of constitutional law. Even presidents Zia-ul-Haq and Pervez Musharraf sought parliamentary endorsement for their respective 8th and 17th amendments to constitution. It is instructive that even the Supreme Court in its short order while validating the emergency and the PCO described the measures as “constitutional deviation” and declared: “However, this court may, at any stage re-examine the continuation of the Proclamation of Emergency if the circumstances so warrant.”

Despite the claims of the Attorney General, the issue is far from settled and   could unravel when the new parliament has been elected. This would unleash a political storm and the instability will make the country that much more vulnerable to terrorist violence.

Benazir Bhutto had convincingly declared that only an elected civilian government that had the support of the people could defeat extremist violence and usher in an era of peace and security that the country hungered for. Most of the other political parties adopted a similar approach. This was borne out by the first suicide bomb attack in Lahore on 10 January 2008. Twenty three persons died and many times that number received serious injuries.

The foremost question in the minds of people is whether the elections now postponed till 18 February 2008 will really yield the kind of a popular dispensation so desperately required to combat terrorism. The leadership of Bhutto’s Pakistan Peoples Party has devolved on her son, a teenager pursuing his studies in distant Oxford. Till his return, the PPP will be led by her husband. This brings home the point that while the political parties clamour for democracy, they do not have internal party elections and are led by the elite, by dynasties who lead their respective organizations almost as if by divine right.

The outcome of previous elections has yielded the same pattern. The feudal class, the rich and the privileged controlled former parliaments and are now set to control the future legislatures. The Dawn editorial of 9 December 2007 analysed a survey carried out by the Free and Fair Election Network and observed: “…the three mainstream parties – PPP, PML(N), PML(Q) – and the Sindh-based PML (F) have made no efforts to diversify class representation in parliament and have continued to give party tickets in overwhelming numbers to feudal lards.” Only the Jamat-e-Islami and the MQM are dominated by the middle class. The former holds party elections but emphasizes its own interpretation of Islamic doctrine; the latter is dominated by a controversial London-based individual whose track record is dubious.

The leadership of these parties have failed the country in the past. Is there any genuine remorse for the bleeding wounds that they have inflicted on the nation? Have they reformed? Or is a new force, yet incipient, emerging that can put the country on the track of  political, economic and social equilibrium so desperately needed to fight the forces of extremist and terrorist violence. The massive popular outpouring prompted by the 9 March 2007 presidential reference against the chief justice led to his reinstatement on 20 July. The political parties were mere bystanders in this country-wide lawyer-led upsurge. Could this be the first sign of the wakening of civil society form its slumber?  Can they be galvanized into a popular political force? In a television interview some months earlier Justice (r) Fakhruddin G. Ahmad observed with the precision for which his is so rightly acclaimed:  “The people of this country may be illiterate, but they are not uneducated.”