Dawn
10 November 2007
Living and dying under emergency
by Qazi Faez Isa
THE conventional way to win cases is by engaging competent lawyers who prepare their briefs, and the matter is heard before an independent court. But if you are America’s friend heading an army, there is another way. Boot out the Constitution, remove and arrest judges and substitute them with ‘judges’ who first swear loyalty to you.
Article 6 (1) of the Constitution stipulates that, “any person who abrogates, or attempts to or conspires to abrogate, subverts or attempts or conspires to subvert the Constitution by use of force or show of force or by other unconstitutional means would be guilty of high treason”. So too would “any person aiding or abetting the acts mentioned in clause (1) shall likewise be guilty of high treason” (Article 6 (2) of the Constitution).
The Nov 3 Proclamation of Emergency stipulates that the Constitution of Pakistan ‘shall remain in abeyance’. There is not a single provision in the Constitution which permits this. On the contrary, the Constitution mandates that “obedience to the Constitution is inviolable obligation of every citizen wherever he may be and all other persons for the time being within Pakistan (Article 5)”, which includes all foreigners in Pakistan.
The president, prime minister, Chief Justice of Pakistan and the provinces, judges of the Supreme Court and high courts, federal and provincial ministers, senators, members of the national and provincial assemblies, governors and chief ministers of the provinces, have sworn to “preserve, protect and defend the Constitution”.
All members of the armed forces “swear that I will bear true faith to and allegiance to Pakistan and uphold the Constitution”. The allegiance is not to an individual or to the army chief. Members of the armed forces further swear not to engage ‘in any political activities’.
By keeping the Constitution in abeyance, aiding and abetting to do so, or taking another oath in derogation of the one already taken under the Constitution violates the oath to “preserve, protect and defend the Constitution”. The PCO, however, requires all judges to take a new oath of office (Oath of Office (Judges) Order, 2007) and accept the Proclamation of Emergency and the PCO. Those taking this oath break the one taken earlier under the Constitution. The text of oaths of the highest functionaries also required them to preserve Pakistan’s Islamic ideology.
Emergency has been proclaimed by the army chief, but the Constitution does not give the army chief such power. The emergency envisaged under the Constitution is under certain, very special circumstances, and can be imposed only by the president acting on the advice of the cabinet/prime minister. The stated special circumstances, too, do not exist.The reasons cited in the Proclamation of Emergency include “judiciary is working at cross purposes with the executive and legislature”, interference by “the judiciary in government policy”, “interference in executive functions”, “humiliating treatment meted to government officials”. None of these so called grounds permit the imposition of emergency. The Proclamation of Emergency, therefore, clearly contravenes the Constitution.
All lawyers except those on the gravy train of the public exchequer are protesting. The government acknowledges that in the two largest cities of Pakistan alone it has arrested 500 lawyers of which 344 have been arrested in Lahore, although according to the BBC, 3,000 lawyers have been arrested. The police barged into courts premises, lobbed teargas shells and beat peacefully protesting lawyers with lathis. Never before in the history of the world have so many lawyers been arrested. Not in Hitler’s Germany, Franco’s Spain or Saddam’s Iraq. Another record to be displayed in the camp office next to the one earned for making Pakistan the ‘most dangerous place in the world’.
Musharraf after acknowledging his failure — “there is visible ascendancy in the activities of extremists and incidents of terrorist attacks”— thinks the solution lies in arresting all lawyers and judges who do not grovel before him. Similarly, if the resources of the state are spent on arresting and imprisoning members of the Human Rights Commission and members of civil society the terrorist would vanish. And he has also embarked on muzzling the media. Does this stand to reason? So much effort and resources would have been better expended in detecting and apprehending terrorists instead.
Each one of the lawyers that were arrested stood against religious extremism and terrorism; Zahid Ebrahim, who graduated from America’s prestigious Fletcher School of Law and Diplomacy, father of six-year-old Khadija and four-year-old Fatima, and Ishrat Alavi who did his law from S.M. Law College, father of three-year-old Kamil and 10-month-old Sana. But, on the very same day the government tells us that it has freed “25 militants in exchange for the release of 213 army personnel”.
The following day when the entire security apparatus of the state was hounding judges, lawyers, journalists and members of liberal society, Madyan, a town in Swat, fell to the extremists “after security forces surrendered without firing a shot”. What is the moral of the story? What is the lesson to be learnt?
Highly educated men and women have been arrested. The future of Pakistan lies in a state of arrested development. A phone call from London informed me about the imposition of emergency in Pakistan as all private and international news channels had been blocked. The History Channel, however, was running, showing a programme on Hitler.
The Constitution is the life of a nation. Aristotle writing over 2,300 years ago knew that ‘Living for the Constitution is salvation’. Anyone trampling the Constitution tramples on our rights and wants his point of view to prevail by force. When the government cuts off the tongue of the media, arrests judges, bludgeons and incarcerates peaceful citizens it too acts like a terrorist.
Standing up for the truth and the Constitution is likely to get one arrested. But when your little Fatima or Sana come to question why we live in a police state you will not lower your gaze.
