[NYTr] PAKISTAN: Constitution Under the Jackboot Yet Again

[All the News That Doesn't Fit]

IPS - Nov 18, 2007
http://www.ipsnews.net/news.asp?idnews=40106

PAKISTAN:  Constitution Under the Jackboot Yet Again

Analysis by Zofeen Ebrahim

KARACHI, Nov 18 (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.

"Musharraaf'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.

(END/2007)