Adil Najam
As I wrote yesterday, the emergency declared by Gen. Musharraf is deeply disturbing, but not really surprising. The horrendous political situation that Gen. Musharraf described in his ‘Emergency’ speech is, in fact, true.
Extremism and violence has gone out of hand. Society is deeply divided. Religion has been high-jacked and is now routinely used to incite violence. The writ of the government is being trampled. Politicians have failed and people do seek recourse in the judiciary. People are frustrated and deeply disturbed. We have been writing and discussing all of this and more on this blog repeatedly. We cannot, therefore, deny what is obvious.
However, none of this is a justification for a suspension of the Constitution and for the declaration of emergency. In fact, all this is damning evidence of government failure. A suspension of the constitution will not and cannot resolve any of these issues. It is more likely to – and has already – made each of these situations even worse.
We had written recently that Gen. Musharraf is now operating on a ‘Karr lo jo karna hai‘ philosophy… “do whatever you will, I am here to stay and will do whatever it takes.” Right now he seems to believe that an Emergency is what “it will take.” Maybe so. Maybe it will buy him a little more time to hold on to power. But, for how long? And, at what cost?
We have also written before that Pakistan is a democratic society trapped inside an undemocratic state and that we are living through Pakistan’s moment of democratic struggle. Perversely, the events of the last days have again proved this thesis. The reason that Gen. Musharraf has to apply increasingly more draconian measures to hold on to power is precisely because society is progressively unprepared to maintain a patently undemocratic order. This is precisely why the targets of this current action are the two forces that have emerged as the most vibrant and important custodians of the nation’s democratic spirit: the judiciary and the media. With politicians, who seem far less interested in real democracy, you can always cut deals; less so, it seems, with the spirit of justice and free speech!
What will happen in the next few weeks? Probably, they will get worse. Just how much worse things might become, and how, will depend on what happens in the next few hours. Benazir Bhutto is back in Pakistan, but seems mysteriously silent; or at least cautious. Word is that she will speak to the Presidency soon. What comes out of this will be important. Whether the gag on the media will be permanent or not will also matter. And if it is lifted, how will the media ‘behave’? The street reaction today (Monday), especially of the legal fraternity will be another key indicator. As always in this beloved client state of ours, the reactions from Europe and Washington – including on aid continuation – will also have an effect. But ultimately, it is really about whether the democratic spirit of the Pakistani populace will be broken or not. I suspect – I hope – it will not.
To go back to the beginning of this post. The events of the last two days are disturbing, but not surprising. A review of some of the posts on this blog posted over the last year or so, shows why. The depiction below not only provides one blogs-view of a chronology of a political meltdown, it also highlights the various dimensions of the downward spiral that Pakistani politics has been slipping down on. Without any further commentary, let me just list a few of these posts. Follow some of these links and the comments there. Doing so have been educative to me, and begins to explain just why we are where we are.
Aug. 26, 2006: Nawab Akbar Bugti Killed.
Sep. 10, 2006: Spreading Lies.
Sep. 14, 2006: Monitoring Friday Sermons by Police.
Sep. 25, 2006: Rumors of an Internal Coup Cause Frenzy in Pakistan.
Sep 30, 2006: Who is Giving Pakistan a Bad Name?
Oct. 1, 2006: Grading Gen. Musharraf: A Performance Review.
Oct. 16, 2006: Democracy in Action?
Nov. 2, 2006: The Cost of Milk and Being a Lakh Patti.
Nov. 8, 2006: Allotment of Expensive Plots for Bureaucrats.
Nov. 16, 2006: The Politics of the Women’s Rights Bill.
Nov. 18, 2006: Will the MMA Resign? And if so, then what?
Nov. 21, 2006: Another Journalist Disappears in Pakistan.
Dec. 15, 2006: Supreme Court Blocks Hasba Bill.
Dec. 28, 2006: Brutally Shameful.
Dec. 31, 2006: Cost of Living: Inflation 2006?
Jan 5, 2007: The Politics of Politics.
Jan. 26, 2007: Insecurity: Suicide Blast at Marriott Islamabad.
Feb. 21, 2007: Mad Anger: Woman Minister Murdered.
Mar. 4, 2007: Kidney Hill, Karachi: The Battle Heats Up.
Mar. 7, 2007: PTCL Fumbles a Censorship Extravaganza.
Mar. 9, 2007: President Removes Chief Justice. Why?
Mar. 12, 2007: Shameful. Distressing. Disturbing.
Mar. 13, 2007: Law Minister Wasi Zafar Misbehaving on VOA.
Mar 15, 2007: Kamran Khan Show on Geo Banned.
Mar. 23, 2007: Celebrating the Democratic Spirit.
Apr. 7, 2007: Lal Masjid Assault on Islamabad.
Apr. 18, 2007: Sahil Bachao: The Battle for Karachi’s Waterfront.
Apr. 27, 2007: Benazir Musharraf Deal.
May 4, 2007: Jahalat: Polio Vaccine Campaign Facing Threats.
May 7, 2007: ATP at the Supreme Court Today.
May 12, 2007: Karachi Burning: Clashes, Firing, Violence, Deaths.
May 12, 2007: ATP Goes to Lal Masjid.
June 1, 2007: Military Inc. Causes Waves in Pakistan.
June 2, 2007: Electronic Media Under Siege in Pakistan.
June 4, 2007: Pakistan Cracks Down on TV News Channels.
June 7, 2007: Will there be Elections in Pakistan in 2007?
June 9, 2007: CJP Crisis: Where is Pakistan’s Prime Minister?
June 23, 2007: Lal Masjid Storm Chinese Massage Parlor.
July 3, 2007: Colateral Benefits: Judicial Assertiveness in Pakistan.
July 3, 2007: ‘Operation Silence’ Against Lal Masjid Islamabad.
July 10, 2007: The Gun Battle at Lal Masjid.
July 17, 2007: Suicide Bomber Targets Lawyers Rally.
July 20. 2007: Supreme Court Reinstates the Chief Justice.
July 27, 2007: The Battle for Lal Masjid Continues.
Aug. 8, 2007: Emergency Being Declared in Pakistan? But Why?
Aug. 23, 2007: Supreme Court: Nawaz Sharif Can Return to Pakistan.
Sep. 4, 2007: Bomb Blasts in Rawalpindi: Pakistan at War.
Sep. 14, 2007: Taliban and Extremists at War Against Pakistan.
Sep. 21, 2007: Manipulated Elections: Karr lo jo karna hai.
Sep. 26, 2007: Can we disagree without being disagreeable?
Sep. 29, 2007: Disturbing Images from Islamabad.
Oct. 6, 2007: Musharraf Gets Votes, But Loses Big Time.
Oct. 10, 2007: Emerging Shape of Pakistan Politics.
Oct. 18, 2007: More than 100 Dead… And Benazir Returns.
Oct. 19, 2007: The Midnight Attack.
Oct. 21, 2007: The Doctrine of Necessity.
Nov. 3, 2007: Emergency Declared in Pakistan.
I will say it again. It is easy to blame Musharraf. But do we have a single good person in Pakistan at higher level. If Judiciary council would have proved that all the references against CJ was wrong than I can say that Musharraf is wrong.
Unfortunately he was as corrupt as any other ” so called pakistani politician”. Without musharraf you will have the government of Taliban minded extremist, which is worse than any thing. Wake up , democracy can not give you a secure Pakistan, when Majority is bad.
From Daily Times. This is the legal situation.
Former judge, former DAG question PCO by COAS
Staff Report
KARACHI: Justice (retd) Mushtaq Ahmed Memon and former Deputy Attorney General Barrister M. Naim-ur-Rehman have challenged the Provisional Constitution Order (PCO-2007) before the Sindh High Court through their counsel Anwar Mansoor Khan, former Advocate General Sindh.
The petitioners made the President of the Islamic Republic of Pakistan, Prime Minister and Secretary Cabinet Division respondents. They stated that they, in the name of imposing an emergency, have in fact imposed military rule, are in excess of authority, have put the Constitution of Pakistan in abeyance, and have thrust upon the people of Pakistan a PCO.
The respondents have no authority to impose upon the people of Pakistan a supra constitutional order/extra-constitutional measures by an individual, being contrary to the law and the constitution of the Islamic Republic of Pakistan, they maintained.
The petitioners also relied on an order passed by a seven-member bench of the Supreme Court of Pakistan filed by Barrister Aitezaz Ahsan on behalf of Justice (Rtd) Wajihuddin Ahmed, who expressed the apprehension that the respondent may change the composition of the bench by adopting extra-constitutional measures by either putting in place Martial Law, or bringing the PCO, or imposing an emergency.
They maintained that the matter was taken up on Nov 3 by a seven-member bench which restrained the president and the PM from taking any such action contrary to the independence of the judiciary. This included fresh oaths under the PCO or any other extra-constitutional step.
The Chief of Army Staff, Corps Commanders, Staff Officers and all concerned of the civil and military authorities were also restrained from acting on the PCO which has been issued or from administering fresh oaths to the Chief Justice of Pakistan or judges of the Supreme Court and the chief justices or judges of the provincial high courts.
The Nov 3 order was communicated to the SHC before the PCO was passed, whereby the respondent and the functionaries were restrained from doing what has been stated in the order. Despite this, the respondents, in blatant disregard of the lawful order passed by seven judges of the Supreme Court of Pakistan, issued the PCO, committing contempt of court, in addition to violating the order.
In the SHC, 12 out of 27 judges were called upon to take a fresh oath. The petitioner submitted that all the judges knew of the order by virtue of Article 189 of the Constitution (all decisions being binding on all the courts), and a lawful order was binding on every court including the SHC. In addition, Article 190 requires all the executives to act in aid of the SCP, the petitioners maintained.
The respondents, contrary to the provisions of the Constitution, proceeded to issue the PCO and gave direction for its implementation. The directions were unlawful, illegal and void, they submitted.
The petitioners maintain that the present disposition, thrust by the executive cannot be deemed to be a high court in terms of Articles 192, 193 and 194 of the Constitution, whereas any further judges are appointed under the PCO and in contravention of Article 193 of the Constitution cannot be deemed to be judges of the court.
The respondents, their agents, employees, subordinates or the like have no jurisdiction in law or the constitution to remove or restrain, directly or indirectly, any judge or the Chief Justice of the Sindh High Court, except under Article 209 of the Constitution. As such the respondents, in doing so, especially in view of the Constitution and the order of the Supreme Court of Pakistan, have acted to subvert the constitution and act contrary to it. The facilities lawfully granted to the judges cannot be withdrawn or curtailed and in doing so the respondents have acted unlawfully. They submitted that this may be treated as public interest litigation.
The petitioners maintained that the act of calling upon the judges to take a fresh oath under the PCO was illegal, corum non judice, and of no legal effect and that the respondents had no jurisdiction to prescribe a fresh oath and to restrain the judges from performing their constitutional functions as judges of the SHC, especially in view of the order dated Nov 3.
The respondents were obliged to act under Article 189 and 190 of the Constitution and refrain from issuing the PCO and any of them had no jurisdiction, authority or justification to place the Constitution in abeyance.
A situation does not exist where an emergency could have been imposed.
The court was prayed to declare that the PCO dated Nov 3 is ultra vires the constitution and any order and any action passed on the basis thereof is corum non juris, to declare that all the actions contrary to the order dated Nov 3 passed by the Supreme Court of Pakistan is unlawful, corum non judice, void and of no legal effect; to order implementation of the order passed by a seven-member bench of the Supreme Court of Pakistan in letter and spirit and to direct the respondents accordingly, to restrain the respondents, the government functionaries, their servants, subordinates and persons acting for them or on their behalf, from taking any action contrary to the Nov 3 order and if any action has been taken, to undo them.
Adil Bhai:
Very well written article. God bless you.
Here it is, Faiz sahib’s poem translated by my other and and I today.
Today In the market place, though chained and fettered walk!
The misty eye, the fiery spirit , not enough
The allegations of intense love, not enough
Today in the market place, chained and fettered walk !
Walk waving your arms– dance in ecstasy, walk!
Walk to protest in sorrow, walk with blood splattered clothes, walk!
Destiny awaits you, walk!
The masters too, the masses too.
The arrow of accusations too, the stones of abuse too,
The unhappy daybreak too, the failed day too.
Who else is their companion other then us?
In the city of the beloved who is defiant?
Who is worthy of the executioner’s hand?
Take courage, wounded ones, walk!
Let us once again go to be murdered–friends, walk!
Aaj Baazar Mein pa bajaulan chalo
Chasme naam jane shorida kafi nahin
Tuhmat e ishq e poshida kafi nahin
Aaj bazaar mein pa bajaulan chalo
Dast afashan chalo mast or raqsan chalo
Khak bar sar chalo khun ba daman chalo
Rah takta hai sab shahr e janan chalo
Hakim e shahr bhi majma e am bhi
Tir e ilzam bhi sange dushnam bhi
Sobho nashad bhi roz e nakam bhi
Inka dam saz apne siwa kaun hai
Shahr e janan mein ab ba safa kaun hai
Dast e qatil ke shayan raha kaun hai.
Rakht e dil bandh lo, dil fagaro chalo
Phir hamin qatl hoaen yaro chalo.
– by the way , Generals are not good surgeons, so
what could the outcome be anyway,
May Allah show Mercy on Pakistan,
after this traumatizing operation, dont hope that there will be too many “post-operational complications”.