The News
November 13, 2007
The HRCP gang of 55
by Khwaja Ahmad Hosain
On November 3, the constitution of Pakistan was put into abeyance. Nothing seemed very different as I drove down the Main Boulevard in Lahore on a beautiful Sunday afternoon past the incongruous palm trees. The smiling faces of Chief Minister Parvaiz Elahi and General Musharraf adorned the streets. In Garden Town a meeting of the Human Rights Commission of Pakistan (HRCP) had been underway for some time when I entered. The conference room was quite crowded. There was a lively debate in progress. Some of it philosophical, some of it hypothetical, some of it incomprehensible. I am not a member of the HRCP but everyone seemed very nice and willing to listen patiently to complex views and analyses which were articulated with conviction.
As I got up to leave for a lunch appointment, a friend stopped me and told me that the building had been surrounded by the police. On hearing this, the person standing next to the entrance promptly bolted the door. The discussion inside continued. After a few minutes, there was a gentle knock. The people next to the door looked uncertainly at each other. Finally someone said, "Open it, they can't come inside a closed room and stop a discussion". The door was opened. It was an ordinary citizen. He was let in and the door was bolted again. Moments later a louder and more sinister knock was heard. The police were demanding to be let in.
There was a short and raucous debate about what to do next. Everyone was slightly bewildered. What crime had been committed? Was it an offence to hold a discussion on private property? This debate was short lived and the HRCP office-bearers went outside and held discussions with the police. There were some legal submissions made. Where was the warrant to enter the private property? On what grounds were the participants being arrested? These submissions did not impress the officers who provided no explanation apart from asserting that they had orders and these were going to be implemented. The participants were escorted, gently in some cases and not so gently in other cases, into police vans. As we got into the vans we observed that the police outnumbered those being arrested.
We all entered Model Town police station and provided our details. Our mobile phones were confiscated and we were taken, as a concession, to rooms which were normally occupied by thana staff rather than to the cells. Many hours of uncertainty followed. There were rumours we were going to be sent to Mianwali jail for 30 days. This was a distressing prospect. There were other rumours that we were going to be split up and divided among the jails in Lahore. To pass the time, the women enthusiastically, but generally quite tunelessly, sang revolutionary songs.
As Sunday turned to Monday, there were no concrete developments. They would have to move us from the thana since it was clear we were not going to be released immediately. The morale of the group was divided. There were pessimists who managed to decipher some horrible conspiracy in every act. The optimists were convinced that our release was imminent from the moment we were first led into the police vans. Neither group was right. After much negotiation and string pulling at apparently the highest levels, the group was moved to three houses in Gulberg which were designated as sub-jails. There were fifty-five of us. Thirty-one men and 24 women. Just before dawn on Monday (Nov 5) morning as we entered our sub-jail in Gulberg -- it was decided by some of the lawyers that the group should be named the "55-plus group". This was in recognition of the new legal grundnorm which had earlier been characterised by Sheikh Rashid as an "emergency-plus".
The Provisional Constitutional Order (PCO) issued on November 3 is much more than just a mere 'emergency-plus'. The constitution together with certain crucial fundamental rights has been suspended. There is no fundamental right to life or liberty (Article 9). There is no right to remain in Pakistan or to travel within Pakistan (Article 15). There is no right to assemble peacefully (Article 16). There is no right to be treated equally and without discrimination (Article 25).
Apart from this, neither the Supreme Court nor the high court can pass any order against the president or the prime minister. All laws shall continue to apply, subject to any orders that the president may make. He can also, most significantly, by a simple order and without any declared parameters, amend the constitution.
The PCO and our current legal system can be summarised in one sentence: "Pakistan will be governed by such laws and rules and in such manner as General Musharraf may decide from time to time and no one can question what he does." This unlimited and unfettered power has been granted by General Musharraf to himself for an unspecified duration. Neither the proclamation of emergency nor the PCO even hint that there should be some urgency to return to strict constitutional rule. Neither document specifies who will decide if and when to return to strict constitutional rule.
How did all of this impact the "55-plus group"? Notwithstanding the absence of a fundamental right to liberty, the relevant criminal laws continue to apply and an application for bail was to be made on Monday on behalf of all 55 defendants. The bail application was made and the defendants were all produced before the court and lawyers were appointed to represent them. We were quite confident that in light of the nature of the alleged offences which were all bailable, we would be released on bail. This did not happen. Instead we were transferred to Kot Lakhpat Jail on Monday evening. The bail hearing was adjourned to Nov 6. The intention was, apparently, to teach a lesson to these so-called liberal and activist elements that the government really meant business and the good old days of the movement for the restoration of Chief Justice Iftikhar Chaudhry should be forgotten. After 'checking-in' at
Kot Lakhpat, and as we were waiting for our accommodation to be prepared (we were not expected), rumours again started to circulate. Heated negotiations and discussions took place and it was eventually decided that all defendants would be moved back to the designated sub-jails until the bail hearing scheduled for the next day. On the hearing, which took place on Nov 6, bail was granted and we were finally released on the evening of that day.
Fifty-five individuals who were having a thoroughly civilised, if often recondite, discussion inside a closed room on a Sunday afternoon were denied their freedom for more than 50 hours by the state. Many more have been denied their freedom for much longer and are going through far more trying ordeals merely on the ground that they were engaging in peaceful demonstrations. Judges of the superior judiciary who have either refused to take oath or have not been invited to take oath under the PCO are being denied fundamental rights of movement. They have effectively with the stroke of a pen been removed from the judiciary. These judges are individuals of ability and integrity. If this judicial purge is not reversed, our judiciary will not recover from this blow for at least another decade. With a compromised, demoralised and subservient bench, no one can feel secure or safe in the long-run.
The vast majority of the legal community and members of civil society see the enormity of what has happened. To all those businessmen, stockbrokers and others who have prospered under General Musharraf's regime and who continue to support him, reflect on this: all your wealth, assets, security and freedom and those of your children can be taken in an instant by a single order if for any reason you develop differences with those in power. If they are, where will you turn? Having lost your 'contacts', you will have to turn to the judiciary to redress any grievance. What type of judges would you like to have hearing your case in those circumstances?
Although nothing seemed very different when I drove to the HRCP meeting last Sunday afternoon, in fact there had been a huge change. In the short term, the PCO and the proclamation of emergency had placed an entire nation at the mercy of the whims of a single individual. In the long term, an entire generation's prospects and security had been compromised by an assault on a critical institution. The PCO and proclamation must be reversed and all the judges who have not taken oath under the PCO must be restored and allowed to resume work. If this does not happen, regardless of the political dispensation prevailing, all of us and our children face a dismal and uncertain future in Pakistan.
The writer is an Oxford-educated barrister who practises corporate law in Lahore. Email: hosain@cyber.net.pk
