PERSECUTION of political opponents or simple dissidents has gone on for many hundreds of years. It has included dismissal from positions of authority, confiscation of property, abuse and molestation of one’s family members, imprisonment, torture, and ultimately death. These forms of persecution are still operative in much of the world, including established democracies, especially — but not exclusively — when the challenger is perceived as a foreigner. Instruments of torture, more efficient in causing mental anguish and physical pain, have been devised as if the old rack was not enough.

There is one important difference, however, between the temper of the bad old days and the outlook of our own time. At the level of profession, torture and other forms of harshness visited upon dissidents are now said to be wrong. Written laws forbid them. Conventions on human rights say how not to treat critics and opponents. But both domestic law and international conventions on the subject are often ignored.

We are speaking here of men and women who wield governmental authority and power — be they dictators or elected rulers — and the treatment they dispense to their actual, suspected, or potential rivals. When a prince in the old days killed his nephews, after he was done with brothers, he was clearing the field of potential, not actual, adversaries. A similar consideration may have been at work when Nawaz Sharif’s family members were dispatched, along with him, to Saudi Arabia.

The British in India were capable of all kinds of cruelty in dealing with insurrections against the Crown. In settled times, barring isolated incidents such as the massacre at Jalianwala Bagh (April 13, 1919), they were firm but reasonably civil in treating opponents. Gandhi, Nehru, Patel and many of their colleagues in Congress were imprisoned more than once but they were not tortured or otherwise abused. In this regard the post-independence record in both India and Pakistan has been mixed.

One does not have to belong formally to an opposition group to merit the ruling authority’s adverse attention. Nor does the mere fact of sitting on the wrong side of the isle in an assembly make a person an opponent and, therefore, a fit recipient of blows in sensitive places. Mukhtar Rana had not deserted the PPP, but simply disagreed with Zulfikar Ali Bhutto, when he was detained, tortured, and kept in prison for several years. Mr. J.A. Rahim was a minister in Mr.Bhutto’s cabinet when, one night, some hoodlums from the Federal Security Force broke into his house and beat him up for having made a show of self-assertion in a social situation at the prime minister’s house the previous evening. Maulana Tufail, Amir of the Jamat-i-Islami, tortured and abused in Kot Lakhpat jail in Lahore, was of course one of Mr. Bhutto’s more vocal and persistent critics. So was the JI’s amir in Dera Ghazi Khan, a physician, who was shot dead while working in his clinic.

I don’t remember many reported cases of the central government’s opponents being subjected to physical abuse or even harassment during our first parliamentary regime (1947-1958); it did, however, occur often enough in the provinces. The basement levels of the “Fort” in Lahore, comparable to the SAVAK prisons in Tehran and elsewhere in Iran, were notorious as a place of torture for both hardened criminals and political opponents for many years until the Attock Fort replaced this “facility” sometime in the late 1960s.

Successive governments kept the more prominent leaders of the National Awami Party (later renamed the Awami National Party) in NWFP and Balochistan in prison for extended periods of time on the dubious charge of treason or sedition. Three times the army has gone into Balochistan to suppress alleged insurrectionists, and the third time it remained embattled there for several years (1973-1977).

Political differences with the government of the day-which could have been resolved through genuine negotiations-rather than any want of patriotism on the part of the Baloch leaders caused some of these revolts. It is noteworthy that the third revolt, the longest and the most bloody, was initiated by Prime Minister Zulfikar Ali Bhutto’s highhandedness in dismissing the NAP government in Balochistan in March 1973-an expression of his own unbounded quest for power.

The NAP, the JI, and the dissidents within the PPP were the main targets of persecution during Mr. Bhutto’s regime. Zia-ul- Haq focused his hostility upon the PPP. Mr. Bhutto, its chairman, was put to death, his wife and daughter imprisoned for periods of time before they were allowed to go abroad. A great many of the party’s other notables and workers were put in jail, and some of them were flogged. The treatment meted out to them is said to have been ferocious.

Apart from preventive detention or detention for undeclared reasons, institution of bogus criminal cases against political opponents has long been favoured as a way of dealing with them. At one time during Mr. Bhutto’s rule some ninety cases were said to be pending in various courts against Chaudhry Zahoor Ilahi, a PML politician from Gujrat. But this reprehensible practice became especially popular with the governments of Benazir Bhutto and Nawaz Sharif in the 1990s.

Each of them filed numerous charges of corruption and other types of malfeasance against the other and his/her associates. It is an intriguing fact that, while the cases remained with the courts for years, no one from either side was ever convicted. In fact it may be hard to say when in our entire history was an important politician convicted of a crime and sent to jail, barring a few cases during periods of military rule: for instance, Ayub Khuhro in 1959, Bhutto in 1968, and Nawaz Sharif in 2000.

Why have the convictions been so few? That the cases were bogus, or that the prosecution was incompetent, is not a good explanation. One may wonder why bogus witnesses, in sufficient numbers, were not found to support the prosecution’s case. This has been done in criminal cases as a matter of routine for more than a hundred years. One may recall a report of the Indian Police Commission (1903) which noted that most of the evidence the prosecution presented in criminal cases was fabricated.

That has probably continued to be the case in both India and Pakistan. Government prosecutors do not ordinarily lose cases against thieves and robbers. Why do they then lose the ones against the government’s political opponents? Could it be that they don’t want to win because their employer, the government, does not really want to send opposing politicians to jail?

Then why institute the cases in the first place? The purpose may be to harass the opponent more than serving the ends of law. Confronted with numerous cases in different courts at the same time, the accused would have to run from place to place, spend a great deal of time preparing his/her defence, neglect political work, and pay enormous amounts of money in lawyers’ fees. The fatigue and expense imposed upon the opponent does not burden the accuser’s conscience because of his/her belief that the money being spent is coming out of reserves that the accused had appropriated unlawfully while in power.

A new kind of persecution has been launched by the present government. Zia-ul-Haq nurtured Islamic fundamentalism, sponsored and funded militants (jihadis) in the expectation that they would fight non-Muslim forces outside Pakistan. The succeeding governments continued support and patronage to these elements even if they did not share Zia-ul-Haq’s ideological commitments and impulses.

The militants did fight in Kashmir and Afghanistan, but many of them also turned upon fellow-Pakistanis whom they regarded as the wrong kind of Muslims and, in the process, wrecked public peace and tranquillity. In effect they became ready to oppose the state of Pakistan itself if its rulers would not accept and implement their version of Islam.

General Musharraf, personally, may not have been well disposed towards fundamentalists and militants, and he may have been particularly disapproving of their disruptive activities within Pakistan. But his government continued to aid them, presumably because they had been working as instruments of its policies in Kashmir and Afghanistan. Then came the events of September 11, 2001 that changed many of the world’s ways of doing business. American pressure took him off the horns of the dilemma on which he had been perched.

The general now became free to disown the fundamentalists and militants, claimed that his government had nothing to do with them, and moved to ban and banish them. Allies of yesterday suddenly became the foes of today, much to their surprise, chagrin, and sense of betrayal. Having recovered from their initial shock, and gathered together their wits, some of them have resumed their terrorist activity in Pakistan, partly as a gesture of defiance addressed to the general’s government. Reports have it that the government intends to arrest and detain all those who have, “directly or indirectly,” aided the fundamentalists and the militants during the last decade.

There was never any law that forbade Pakistanis to join the Taliban or al-Qaeda organizations. Until recently, when half a dozen militant organizations were outlawed, Pakistanis were free to join them. Are the government officials, especially those in the intelligence agencies, who operated programmes of aiding the militants, now being arrested and imprisoned? Needless to say, they are not. Why then arrest the citizens who aided those whom the government itself had been aiding for some twenty years?

It would be more sensible to say that, for reasons of state, the government had reversed its former stance and, whatever their status in the past, the fundamentalists and the militants were now to be considered hostile forces, and friendly association with them would henceforth be unlawful. But there can be no justification for implementing this new policy with retroactive effect.

THE controversy over presidential referendum whether it conforms to the Constitution or violates it, is receiving more attention than it deserves. The fact it overlooks is that the president has the power to amend the Constitution and, secondly, even for extra-constitutional actions he can be bailed out by the judicial doctrine of necessity.

Thus whatever passion or punch lawyer Hafeez Pirzada may pack into his argument for the referendum and judge Sajjad Ali Shah against it, the question remains academic. It will not change the ground reality. Now that the die, nevertheless, has been cast, the focus of the debate should shift from the constitutionality of the referendum to the effect it would have on national unity and coherence, and on the morality of the people and national politics. That embraces many questions more fundamental than just one on which President Musharraf is seeking five more years in office.

Will the referendum lead to a pluralistic state or fascism? Will it heal or deepen many divisions in society? Will the genie of religious hatred released by Zia-ul-Haq’s referendum go back into the bottle? Will the foreigners, and indeed our own people, invest in Pakistan and trade with it expecting fair profit and treatment? And, above all, will the common man be helped more and harassed less by the emerging system and state agencies?

These are the questions which stick like a bone in the throat of every sceptic whom Musharraf has chosen to call dishonest or disruptionist when they question the constitutionality, or wisdom, of calling for a referendum when all eyes were fixed on general elections six months ahead.

No one will feel compelled to vote for Musharraf just because he has put a nazim in place of a deputy commissioner or because the previous regimes were corrupt. And then he wants to accomplish Jinnah’s mission. But has any government ever intended to deviate from it, and yet every government did? About curbing extremism, doubts persist whether he can or will, now that he is part of a fractious politics in which religious groups play a much bigger role than their combined vote bank of less than 10 per cent.

More than making the people answer ‘yes’, the uphill task would be how to make them leave their homes on April 30 which, almost certainly, will be a holiday. Surely, Musharraf saw a glimpse of not-too-encouraging a result of the expensive, yet clumsy, efforts his officials and men made in mustering audience for his first, and most prestigious, meeting at Lahore.

The news stories about the meeting appear to hark back verbatim to Ayub’s campaign against Ms. Fatma Jinnah’s challenge: the buses commandeered leaving the passengers cursing and stranded; the folks being carted interested more in a free trip to the city than to hear and applaud speeches; huge expense incurred by the governments and local councils on publicity, entertainment and physical arrangements; the officials of all varieties giving up their duties for weeks together only to organize and supervise the meetings.

The wonder is that Ayub was pushed into it, Musharraf has opted for it. The fear is that going through this rumpus his authority and credibility will be undermined as was Ayub’s. The people like to be regaled by demagogues but judge the authoritative rulers by their commitment to their welfare. Syed Ataullah Shah Bukhari of Ahrarul Islam, it is said, used to lament that the people listen to him night-long but in the morning go and vote for Jinnah. There cannot be another Jinnah but the general should try to learn by his example. He certainly cannot make a Bukhari.

Musharraf’s strength lay in his blunt talk and credible action not in haranguing crowds. Look, how his credibility lies in tatters after the very first meeting. According to the BBC and Dawn the crowd numbered in thousands, the Lahore nazim who was the chief organizer claimed it was three and a half lakhs (he had to trump it up for he had brought them all). The chief trumpeter, Tariq Aziz of the Supreme Court raid fame, unwittingly and contrary to his charter scaled it down by a lakh. Musharraf approved of his nazim’s count by a warm public hug. The people would nevertheless tend to believe the BBC and Dawn. Musharraf to them stands duped. He has to be wary of those who are, as they say, more royalist than the king.

After the election and referendum campaigns of Ayub and Zia, the public morality and administration both took a nosedive. The elected representatives and officials alike sought to promote their interests and careers through sycophancy rather than service to the public. That is how the premier administrative and police services of the country debased themselves and the hierarchies under them corrupted and collapsed.

The things now have come to a pass where the Punjab governor with a myriad problems on his hands, the needy and oppressed waiting endlessly to see him, had to spare a day to inspect the loudspeakers and chairs personally for the president’s meeting. Imagine the Nawab of Kalabagh doing it for Ayub!

The president has chosen to go to the people before the fruits of his government’s exertions in loan forgiveness/rescheduling, and revival of the economy through frugality, investment and trade reached the people. The five-billion dollar reserves do not help the people if both unemployment and poverty are rising.

It is a shamefully depressing thought put across by some economists that if India’s economy continues to grow at double the rate of Pakistan’s, as indeed it has for the past five years, an average Indian over the next ten years will be twice as rich as a Pakistani. A more instantly verifiable fact supporting that forecast is that India’s software export alone at $8 billion a year equals Pakistan’s total export. It shows a vast gap not just in earnings but also in education and technical skills.

In 2001 foreign direct investment in China was $46.8 billion. In Pakistan it was less than half a billion dollars and that too mostly in commercial exploitation of oil and gas. The comparison with these two countries has been drawn because they are neighbours, larger in size and population and just a few years ago were poorer than us.

In his referendum campaign the president wants credit for not bargaining on Kashmir at Agra. No one bargained before him either. That is how Kashmir has remained under Indian’s occupation for the last 53 years and for the last 12, on the average, 20 Kashmiris a day are dying. No one has got Kashmir for us uptil, now, nor will Musharraf, even if he wins the referendum. He should have bargained to save the lives of Kashmiris and the economy of Pakistan and to spare us all the anguish of looking every morning at the news pictures of magnificent Kashmiri women wailing for their dead. Exhausted and wrought, the people of Pakistan seek no conquests, nor expect economic miracles. They seek only to live in peace and amity if Musharraf were to take care of the fundamentalists as he has promised he would.

The referendum, on the other hand, is exacerbating tensions. Musharraf is mistaken if he thinks that the people who stand by him are any more competent or less corrupt than those in prison, in exile or in the doghouse. They were just lucky or shrewd enough to escape the dragnet or jump the ship in time. Those who oppose him, likewise, are not led by principles alone. It is their political calculation or gamble. Of course there are honourable men in both camps but, there should be no doubt, each has chosen his own route to influence and power.

Having won the referendum which he will (if he hasn’t already as the Punjab Governor and Lahore nazim assure him) he should preside over a grand reconciliation. His referendum and politics that follows should unite and not further divide a ravaged polity.

I HAVE read with care the article by Mr Sajjad Ali Shah, the former Chief Justice of Pakistan, in April 11 issue of Dawn. I and Justice Sajjad Ali Shah have interacted in many different capacities and in varied fields during the last five decades. In fact, I had the comfort of his association in the ministry of law during the painful and ominous days of 1977 preceding the imposition of martial law.

It is, therefore, somewhat surprising that the Chief Justice has missed the dominant thrust of my interview which was aimed at the necessity and inevitability of a safe and smooth transition from the present extra-constitutional legal order to the revival of the 1973 Constitution and consolidation of the institutions thereunder. My interview was given from a totally academic, constitutional, pragmatic and historic perspective, and I had candidly stated that according to his speech General Musharraf was seeking a democratic mandate from the people rather than a direct election. Therefore it was not appropriate to impute any political undertones to my views. We, lawyers and judges, often discuss and opine on many abstract constitutional theories and propositions.

Justice Sajjad Ali Shah is a witness to the political crisis of 1977 which had a debilitating effect on the democratic and constitutional order, resulting in military rule which lasted a decade. In the struggle for the revival of the 1973 Constitution, many human lives were lost and hundreds of political activists publicly flogged in violation of human dignity. Thousands suffered jails and incarceration and some opted for exile.

The institutions were the worst sufferers, so much so, that when the Constitution was revived — albeit with amendments — the institutions could not produce and sustain stable and viable governments. Corruption, incompetence and nepotism became the order of the day, and five Assemblies and governments respectively, received a premature boot, between 1988 and 1999 and could not complete their normal tenure.

The lesson from history must be well learnt: no doubt the proposed referendum of 1977 proved abortive; but that was due entirely to the forces opposed to the prime minister.

In discussing the forthcoming referendum I had clearly pointed out the past and present constitutional provisions authorizing the holding of such referendums. The presence of such provisions in the Constitution is also candidly conceded by the Chief Justice.

Therefore, how can a thing be unconstitutional if it is expressly authorized by the Constitution?

Referendum is not a novel concept. It is a democratic process of obtaining the opinion and mandate of the people. Many written constitutions over the world have such provisions which are pressed into service when the normal constitutional provisions do not offer a solution to a crisis or cannot break an impasse. General Charles De Gaulle, the great French president and statesman, resorted to this mechanism — albeit on the referendum recording a poll against him, he made a voluntary exit.

Today, General Pervez Musharraf rules by virtue of the legitimacy and validity accorded to his takeover of October 12, 1999, by the judgment of the Supreme Court of Pakistan in the case of Syed Zafar Ali Shah. The said judgment enjoins that General Musharraf will hold elections within a period of three years to bring the country back on the Constitutional and democratic rails. It is essential that the pursuit of this transition be effected as smoothly as possible. Any deadlock or disruption could, as in 1977, have extreme and grave consequences.

Other points of fundamental importance which the Chief Justice has overlooked are that I categorically quoted from the speech of General Pervez Musharraf that “he was seeking a democratic mandate” from the people of Pakistan and referred to his reiteration that the 1973 Constitution must be saved as otherwise the country will never have a consensus constitutional document.

Lastly, I had pointed out that in the final analysis when the parliament and the provincial assemblies are restored, no matter what has occurred during the interregnum, whether extra-constitutional or supra-constitutional, whether adjudicatory, administrative or legislative, it will be the parliament which would finally grant immunity and provide indemnity, ratification, legitimacy and validation to all such actions, acts and deeds taken, done and performed during the interregnum from October 12, 1999, until the restoration of the sovereign power of the state in its constitutional and democratically elected parliament.

History records its verdicts in its own inimitable manner, overriding many a judgment, dicta, opinions and popular perceptions of the time. No doubt once again it is history which will record the final verdict on this issue also. Can there be a more appropriate and poignant precedent than the case of the Chief Justice himself whose portrait today adorns the gallery of portraits of the former Chief Justices of Pakistan in the Supreme Court of Pakistan.

Before parting I must respectfully point out certain historical inaccuracies in Justice Sajjad Ali shah’s article. These are:

Firstly — The Chief Justice is in error when he avers that I appeared on the television “defending a referendum by a military ruler of Pakistan.”

With respect, I stated the constitutional background and the present provisions therein, as a student of Constitution. This cannot be dubbed as supporting the political decision of General Musharraf to go to a referendum.

Secondly — The government team was led not by me, but by late Zulfikar Ali Bhutto, the prime minister of Pakistan, and chairman People’s Party, of which I and Maulana Kausar Niazi were members. Similarly, the PNA team was led by late Maulana Mufti Mehmood, with Nawabzada Nasrullah Khan and Professor Ghafoor Ahmed as its members.

Thirdly — The parleys started on June 3, 1977, whereas the Seventh amendment was passed on May 16, 1977. It was because the Opposition rejected the proposed referendum that Mr Bhutto initiated the alternate process of a dialogue.

Fourthly — The “parleys” did not fail. On the contrary, on the morning of July 2, 1977, a complete written accord was reached which was initialled by both Professor Ghafoor Ahmed and myself on behalf of the two parties.

No doubt it was the uncertainty which emanated from the prolonged dialogue that encouraged the military commanders to effect a coup d’etat. It is equally clear that had the referendum not been aborted the clear verdict thereof, if answered in the affirmative, would have restored the moral authority of Mr Bhutto’s government and provided the much needed deterrent to any army intervention. On the other hand a negative vote would have precipitated the ouster of Mr Bhutto. In either event, the Constitution and democracy would have prevailed.

I conclude by posing a question by way of a pure constitutional theory:

Can a military ruler, whose takeover and rule has been legitimized and validated by a judgment of the Supreme Court of Pakistan, be denied the option of seeking a vote of confidence from the people through the process of referendum on any plane — constitutional, legal, political or moral?

The writer is former law minister of Pakistan.