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PAKISTAN: Constitution Under the Jackboot Yet Again

Analysis by Zofeen Ebrahim

KARACHI, Nov 18 2007 (IPS) - Pakistan has seen several coups and military dictators in the 60 years of its existence, but President Gen. Pervez Musharraf will go down in history as the man who staged a coup against his own government.

‘’Musharraf’s is a novel case. He has the singular honour of having staged two coups. By staging the second one, he disbanded the very government over which he had absolute control,” Wajihuddin Ahmed, a former supreme court judge, told IPS during an interview.

There are other departures from a ‘normal coup’ too. “Instead of dissolving the assemblies, as often happens in a coup, he suspended the judiciary,” Ahmed added.

“By suppressing the judiciary, the general is controlling the entire country,” said Nasir Aslam Zahid, former chief justice of the Sindh high court. Zahid insists that the proclamation of emergency is in fact, “proclamation of the suspension of constitution” to “get back at the judiciary” and to “straighten” the judges. He was among the few judges who refused to take oath under the 1999 Provisional Constitutional Order (PCO) after Musharraf staged his coup against the government of then prime minister Nawaz Sharif.

But while the legal fraternity mulls over the finer points of what entails an emergency and whether or not Pakistan is under martial law, the supreme court has been banned from rescinding the general’s ‘emergency’ order.

Ahmed, who contested the presidential elections against Musharraf, last month, said that, unlike his predecessors, the present military dictator ‘’seems to be in no mood to call it a day”. ”Two (Field Marshal Ayub Khan in 1958 and Gen. Yahya Khan in 1969) bowed out and the third just fell from the sky (referring to the mid-air explosion in which Gen. Zia-ul-Haq died in 1988).’’

On Nov. 3, the President, who is also the Chief of Army Staff, found himself up against a supreme court which was on the verge of declaring his presidential candidature null and void. He sorted that out by declaring a state of emergency, replacing the constitution under a PCO and sacking all the judges of the higher courts.

In a televised address Musharraf justified his actions by saying that the country faced a challenge from religious radicals and that the judiciary was working at cross purposes to his government’s attempts to stamp out militancy.

“That shows his utter failure to rule,” said Ahmed. “In a way it’s an indictment of his eight years of rule, it’s self incriminatory,” he went on. “He confessed that there was complete lawlessness, that terrorism and radicalism were increasing, that the state had become ungovernable…then what was he doing all these years?”

Musharraf is a spent force, say his opponents who want him to step down as army chief and hold free and fair elections after lifting the emergency.

“Far from it,” observed Zahid. “He is still being seen as a pivotal force in the war on terror… why else is military aid by U.S. not being suspended?”

And so while the world watches with muted criticism and legal eagles term his emergency an ‘extra constitutional’ measure, most people are concerned at the ease with which the Constitution has once again been swept aside.

“Ours is a history of unmaking of the constitution,” said another former Supreme Court judge – at one time the attorney general of Pakistan – who had refused to take oath under Zia-ul-Haq’s PCO in 1981. He asked not to be named.

On comments that all this has resulted in the erosion of judiciary’s authority in the eyes of the common man, the former attorney general said: “It has been the judiciary’s own making when it surrendered to the military, gave power to one single person, swore allegiance to him and allowed him to do what he wished with the constitution.’’

Pakistan got its first constitution in 1956, nine years after independence from British colonial rule in 1947. It was abrogated by Gen. Ayub Khan when he imposed martial law in 1958. A new constitution was announced in 1962.

A decade passed during which half of the country (East Pakistan, now Bangladesh) was lost. Zulfiqar Ali Bhutto assumed the role of both the president and first civilian chief martial law administrator in 1971, after the army disgraced itself by its inability to prevent the truncation of the country.

Bhutto’s government drafted another constitution which came into force in 1973. “This was the closest it came to keeping with the principles of parliamentary democracy,” recounted the former attorney general.

In 1977, Zia-ul-Haq imposed martial law after Bhutto declared emergency and suspended the Constitution. He promised to hold elections within 90 days, but was removed from power only by his death, 11 years later.

Zia’s regime saw many laws introduced with scant respect for national consensus or the values enshrined in the Constitution. These included the draconian ‘hudood’ (laws against sexual offences) and blasphemy laws that were part of the military dictator’s plan to Islamise Pakistan for political and also for strategic reasons linked to U.S.-funded support for Mujahideen fighters that were engaged in expelling the Soviets from neighbouring Afghanistan.

Under the hudood law, the moment a woman reports rape she is arrested unless she can produce four eyewitnesses to back her allegation. She must remain incarcerated until the rapist is arrested, tried and convicted. In 2006 the hudood laws were replaced by the women’s protection bill which brought rape under the purview of civil law rather than Shariah (Islamic law).

Draconian as it was Zia’s martial law had better backing form the judiciary than the one declared 30 years later by Musharraf. “In 1981, almost 90 percent of the judges of the superior courts took the oath under a PCO and there was no furore; this time, the rulers are finding it exceedingly difficult to get new judges and unable to convince old ones to take (fresh) oath – and that is a great advancement,’’ said a senior lawyer.