[Reader-list] Pakistan’s Tyranny Continues (by AITZAZ AHSAN)

[yasir ~]

Hello KK

I am not sure what the problem is if Aitzaz lauds the current CJ of
Pakistan and his client, Iftikhar:

'The detained chief justice continues to receive enormous recognition
and acknowledgment. Harvard Law School has conferred on him its
highest award, placing him on the same pedestal as Nelson Mandela and
the legal team that argued Brown v. Board of Education. The National
Law Journal has anointed him its lawyer of the year. The New York City
Bar Association has admitted him as a rare honorary member. Despite
all this, the Musharraf regime shows no sign of relenting.'

Aitzaz is making a case to the global civil society - all the things
he mentions are documented, the info available from news and other
sources on the net. However the other thing you point out is correct
also - the judges who refused to sign on to gen mush's current coup
against himself (president) and the judiciary in 2007, had taken oath
legitimizing his first coup against the civilan government of pm
nsharif. A rejoinder to exactly this point is pasted below - which may
address the general point in the flow of events and the rich but
flawed[?] drama of our constitutional history - but may not answer all
the points raised in your email.


Are you fond of uniforms?

yasir



received 5 dec

THEY TOOK OATH UNDER THE PCO BEFORE - WHY SHOULD WE SUPPORT THEM NOW?

A bit of history
Pakistan's history is chequered with instances of military taking over
the state. When Ayub took over, he introduced a constitution (1962)
that gave sweeping powers to the President and the military. On his
downfall, for General Yahya, the new military ruler, even the heavily
lop-sided 1962 constitution was not considered in holding on to power.
He issued the first Provisional Constitution Order (PCO) in Pakistan
suspending human rights, civil liberties and the right to approach a
court of law, for common citizens of Pakistan.

After the promulgation of the 1973 Constitution - considered pristine
and drafted by popular choice - there have been two other instances in
Pakistan when military intervention in displacing civil power took
extra-constitutional judicial action through a PCO. In the first
instance judges were asked to take a fresh oath under a PCO in 1981
under General Zia and the second was in 2000 under General Musharraf.

After Musharraf had seized power (1999) the courts were first purged
of independent judges - Justice Wajihuddin being one of the judges who
refused to take oath under the 2000-PCO. Justice Saiduzzaman Siddiqui,
the Chief Justice of the Supreme Court was held hostage by an Army
Colonel for several hours while the oath-taking ceremony took place
elsewhere - it was well known that he would not only have refused to
take oath but would also have influenced other judges in doing the
same.

The newly constituted Supreme Court under Justice Irshad Hasan Khan
gave the military regime de facto recognition, but even they made it
clear that they were doing so on condition that the judicial organ of
the state remained uninterrupted. Justice Irshad Hasan Khan was duly
compensated by appointment as the Chief Election Commissioner on his
retirement.

The Supreme Court declared at the time that independence of the
judiciary was part of the basic structure of the constitution and that
the Parliament could not amend the Constitution's basic structure. The
Chief Executive - as Musharraf had styled himself - was given power to
amend but not alter the basic features of the Constitution.

Another condition was that extra-constitutional measures were
permissible when the Constitution did not provide a remedy and the
action taken was proportionate to the emergency situation.

The present situation
Under the present suspension of the Constitution - unlike any other
situation in the past - the target is the Judiciary, which is
undoubtedly one of the three important pillars of the state holding
the nation together.

Cynics point out that as the judiciary had stamped approval on all
dictators in the past, it was justification enough to dismiss the
Judiciary's current role in protecting the Constitution and rule of
Law. However, what is different this time under the 2007-PCO is that
compared to three (3) judges in 1981, an unprecedented sixty (60) out
of nearly ninety-four (94) judges in the higher judiciary did not
recognize the PCO or take oath under it.

It is important that reasons behind the en masse rejection of the
2007-PCO are widely known.

General Musharraf had claimed that the Judiciary had been interfering
in the Executive branch of the government in the war against terror.
While the courts did not have jurisdiction over the Army, the
Executive on the other hand had all the authority - led by General
Musharraf - to take remedial action and in which it had failed to act.
This blame for failure in fighting the terrorists was passed on to the
Judiciary which in fact had no role in the matter.

With regard to interference in power of the Executive, Justice
Khalil-ur-Rahman Ramday has challenged the government to cite cases
and proofs of this alleged interference. No such proof to back the
rhetoric and propaganda of the government has been presented even
after a month of Army rule.

Analysts point out that the latest coup by General Musharraf was in
reality a coup against an ineffective President Musharraf, while the
Judiciary had been identified as a scapegoat in order to cover this
reality. In fact the military had struck a blow to a pillar of the
state to sustain its rule and control.

Allegations

While the government alleged that the Judiciary was "letting
terrorists go", the particular judges who directed the release of the
Lal Masjid students, Justice Nawaz Abbassi and Justice Khokar, were in
fact the first ones to be welcomed and given oath by under the PCO.

In any case, the courts could only act on evidence received. If no
real cases were put up against the Lal Masjid clerics, deliberately or
not, what was expected of the Supreme Court?

Another reason cited in reference to "letting terrorists go" has to do
with the "missing persons" cases pursued by the courts. The courts
said they would be satisfied if the persons were detained legally,
backed by evidence, with due notification and trial in a court of law.
The court repeatedly asked the government to inform it if the missing
people were held by the military, to give plausible reasons if so and
to try the persons under proper jurisdiction.

In a twist of deviousness, the government and intelligence agencies
refused to admit they had custody of any of these missing persons and
yet continued to release them a few at a time. The judiciary, which
had only asked for putting up cases and evidence against the missing
persons were forced to continue hearing these cases as the government
did not contest their detention. Did the government expect the Supreme
Court to tell the litigants that they did not have the right to
approach the courts for redress?

It must be reiterated that the Judiciary has no authority over the
military. According to the Law, if the police cannot control
terrorism, the Army can be called on to aid civil authorities. As this
was not done and the military has continued to operate of its own
will, the Judiciary was cornered into asking questions from the police
and civil administration. In the meantime the military authorities
stood by and waited for a time to strike at the Judiciary.

Concerning the failed efforts of the Executive - President Musharraf's
government -  in the military operations in Waziristan and elsewhere,
it is out of place to involve the courts as they do not have
jurisdiction in Tribal Areas.

Another allegation was that the Judiciary was interfering in
administration and in the function of the state (the executive
bureaucracy) to the extent that it paralysed the working of the state.
The question was: what remedy do the people have if the civil
administration violates the law? What are the courts expected to do
when a police chief is seen on camera directing his officers to
mercilessly baton charge peaceful journalists and citizens? Judicial
oversight to ensure adherence to constitution and civil rights is a
well established legal tradition.

While previous martial law regimes offered intellectual justification
for usurping power under compelling circumstances, the present
condition provides no such compelling circumstances – threats of
external attack, chaos within, or non-functioning assemblies. All
allegations relate indirectly to the judiciary – this is then
impossible new legal and constitutional circumstance.

This time, at the end of the day, the Judiciary appeared to be moving
towards what the people expected them to do, which was to stand by the
Constitution, rule of Law and the principles on which this country was
founded. If the judges had made a mistake before, their refusal to
take the oath now has redeemed them. Although some judges had refused
to take oath under previous martial laws, this time a majority of
judges refused. In the words of retired Justice Rasheed A Razvi: "if
the Judiciary stands by principles, they should be commended for their
present action rather than condemned for past weaknesses".

The biggest sacrifices have been made by those judges who had only
recently been elevated to the High Court from the District Courts -
like Justice Zafar Sherwani and Justice Salman Ansari, who are
credited with changing the face of the district courts for the better
- and of those who were to retire soon - like Justice Rehmat Hussain
Jaffery who was due to retire on November 22, 2007. "This was
particularly painful because we could not organize a befitting court
reference for him that he richly deserved," said Chief Justice
Sabihuddin of Sind High Court. "He is one of our most principled,
upright judges, and he did not take oath despite being offered a
position in the Supreme Court."

By blaming and scrapping the Judiciary, the Musharraf government has
tried to hide its own failures during the last eight years. Moreover,
the cost of keeping one man in power is dangerously high as a nation
without a Judiciary stands nowhere. Already, in the new "pliant"
courts, cases are being decided and dismissed on the basis of
allegiance to the government rather than the merits of the case.

And yet another fact, scary as it is, is that the judicial experience
of current pliant PCO-judges of Sind High Court averages about a year
and a half – an unprecedented low by all accounts.

The upright judges who refused oath have an average experience of over
8 years and some even have judicial experience over 17 or 18 years.

end