| 12 December 2004 | Sunday | 29 Shawwal 1425 |
The high price of Bonapartism
How the Americans destroyed Fallujah
Spokesmen for the PPP and PML (N) have been scolding the MMA. They have been reluctant to join hands with it in opposing General Musharraf's plan to retain his army post at the same time that he is president, on the ground that it had earlier strengthened his hand by providing him a two-thirds majority in parliament for the adoption of the 17th amendment to the Constitution.
These spokesmen imply that this amendment is reprehensible all the way and by enabling its passage the MMA had done something so terrible that no proponent of democracy should have any truck with it.
The gravity of the mischief embodied in this amendment is not self-evident, and the amendment as a whole deserves to be examined. This is what I propose to do today.
The amendment in question mandates additions to eight articles of the existing Constitution and omission of one (152 A). Of these only two (articles 41 and 58) are critical to the basic character of our system of governance, while the other six relate to relatively minor and mundane matters. Let us first identify, and dispose of, the ones in the latter category.
Articles 179 and 195 fix the retirement age for the Supreme Court and high court judges at 65 and 62 respectively. This is the way it was in the original and the 1985 versions of the Constitution. It was the same in the 1956 Constitution in the case of the Supreme Court judges (60 for those of the high courts). It would appear that somewhere along the line the retirement age was changed, and the 17th amendment restores it to what it used to be.
The retirement age for judges becomes an issue when it is manipulated either to keep, or to get rid of, a certain judge for the executive's political, or otherwise inappropriate, purposes. That does not seem to be the motivation behind the changes effected by the amendment under discussion.
Article 243 of the Constitution relates to the appointment of the chairman, joint chiefs of staff committee, and the chiefs of staff of the army, navy, and the air force. Article 40 (2-c) of the 1956 Constitution authorized the president to appoint "Commanders-in-Chief of the Army, Navy and Air Foces." But it did not say that he could do so in his discretion. Article 37 (7) stipulated that in exercising his functions the president was to do so "in accordance with the advice of the Cabinet or the appropriate Minister."
Article 243 in the original version of the 1973 Constitution made the president's power to make these appointments "subject to law." Furthermore, under Article 48 in the same version the president was required to act only on the advice of the prime minister "and such advice shall be binding on him." Presidential Order 14 of 1985, which became clause 1A of Article 243 in the 1985 version, authorized the president to make these appointments "in his discretion," that is, without reference to the prime minister.
The 16th amendment does not return the matter to the way it was in the 1956 and the 1973 (original version) constitutions, but it does softens Ziaul Haq's blow by requiring the president to appoint the army, navy, and air force chiefs "in consultation with the prime minister" instead of doing so "in his discretion."
Article 270AA has been inserted to validate the coup of October 1999 and all actions taken and proclamations, orders, ordinances, laws, constitutional changes made by General Musharraf as the chief executive and then as president. In our experience this is standard operative procedure resorted to by military dictators before they will step down. Article 268, clause 2 has been amended to take certain orders and measures out of the protected category after a period of six years.
The changes made by the 16th amendment, as described above, are neither momentous in any way nor particularly odious. In fact, in the matter of the appointment of chiefs of the military services, they effect an improvement on the situation as Ziaul Haq had left it, although they fall short of the position established by the 13th amendment which required the president to act in this matter "on the advice of the prime minister."
Let us now turn to the more significant, and also the more controversial, part of the "mischief" the 17th amendment has made. It amends Article 41 (clause 1, sub-clause 7-b) to the effect that paragraph (d) of clause 1 of Article 63 shall not become operative until after December 31, 2004.
It also adds to Article 41 (1)) provision for a move for the "further affirmation" of the president in office by a vote of confidence to be passed in a special session of the presidential electoral college, upon the passage of which the president shall be deemed to have been "elected to hold office for a term of five years under the Constitution and the same shall not be called in question in any court on any ground whatsoever."
What do these changes accomplish? Article 41 lays down the prerequisites for a person to become president including the requirement that he should be eligible for election as a member of the National Assembly. Article 63 which lays down the conditions of eligibility for membership of the National Assembly disqualifies a person who holds "an office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder."
The 17th amendment suspends the operation of this disqualifying provision until December 31, 2004.
The 17th amendment overlooks paragraphs (a) and (b) of clause 7 of Article 41 inserted therein by order of the chief executive on August 21, 2002 (Legal Framework Order) and saying that upon relinquishing his office the chief executive will assume the office of president "forthwith and shall hold office for a term of five years" notwithstanding anything contained in Article 43 or any other provision of the Constitution. The LFO thus nullified Article 43 which forbids the president to hold another office in the service of Pakistan or occupy any position that carried the right of remuneration for the rendering of service.
General Musharraf regards himself as an elected president because the referendum of 2002 gave him the "democratic mandate to serve the nation" in that capacity. He interprets the vote of confidence he received from the presidential electoral college to mean that he has been elected president "under the Constitution." In sum General Musharraf is to be regarded as president because he says so.
The LFO set aside Article 43 but under the 17th amendment, article 63 will become operative after December 31, requiring General Musharraf to give up his army post. Parliament has passed "The Bill to Enable the President of Pakistan to Hold Another Office" in the expectation that it will remove the constraint imposed upon him by Article 63. I am not at all sure that this bill will accomplish the desired result.
In order to remove the constraint, the law would have to name the post (in this case the post of the army chief of staff) the holder of which is not to become ineligible for membership of the National Assembly. This the bill passed by parliament does not do. Instead, it allows the president to hold another office, which is something parliament is not entitled to do except through a constitutional amendment adopted by a two-thirds majority in both houses. I would not be surprised if the courts voided this law for being violative of the Constitution.
Lastly, the amendment under discussion restores Article 58-2 (b) that authorizes the president to dissolve the National Assembly, and which had initially been placed in the Constitution by Ziaul Haq's infamous 8th amendment, and repealed by the 13th amendment in 1997 during Prime Minister Nawaz Sharif's second term.
The authority to dismiss a prime minister and that to dissolve the National Assembly did vest in the governor general under the Government of India Act of 1935 which served as the constitution of Pakistan until 1956, and under which Ghulam Mohammad dismissed Nazimuddin in 1953 and the Constituent Assembly the following year. The Constitution of 1956 (Article 50) authorized the president to "summon, prorogue or dissolve the National Assembly," but it did not specify the circumstances or manner in which the dissolution might take place.
It may be presumed that this provision was to be read alongside Article 37 (7) which required the president to perform his functions in accordance with the advice of the cabinet. In its original version the 1973 Constitution required the president to dissolve the National Assembly "if so advised by the Prime Minister." He had no authority to act otherwise in this regard.
Ghulam Mohammad dissolved the Constituent Assembly because, in his version, it had lost its representative character but, in reality, because it was preparing to pass a bill to curtain the governor general's discretionary authority. In all other instances in our experience, the assembly has been dissolved as a way for the president to get rid of an unwanted prime minister and as a way of asserting the presidency primacy vis-à-vis the prime minister in our system of governance.
Article 37 (6) of the 1956 Constitution provided that "the Prime Minister shall hold office during the pleasure of the President, but the President shall not exercise his powers under this clause unless he is satisfied that the Prime Minister does not command the confidence of the majority of the members of the National Assembly." This provision did not appear in the original version of the 1973 Constitution but it was brought back in the 1985 version (Article 90, clause 6).
But apparently this provision has not suited the purposes of our presidents who have wanted to get rid of a prime minister not because he had lost majority support in the National Assembly but because he did not follow the president's advice in all matters. A prime minister dismissed under this provision could prove the president to be wrong by getting himself re-elected to his post. The Assembly itself would have to be dismissed to make sure that the unwanted prime minister had been put out of the way.
In Great Britain and most other parliamentary democracies, the head the state has the authority to dissolve the lower house of parliament, but either by established tradition or by a specific provision in the written constitution, he exercises this authority only when so advised by the prime minister. The latter will normally request dissolution before the end of the term of the house if he thinks it is a good time for him and his party to go back to the people for a fresh mandate and return to power for another full term.
He may advise dissolution also if he thinks he is in danger of losing majority support in the house, and has decided to take his chances in a new election. But in none of the parliamentary systems of which I am aware does the head of the state dissolve the assembly in order to be rid of a prime minister whom he does not like. The system expects him to get along with him even if he is hard to like so long as he commands majority support in the house. That is what, among other things, the supremacy of parliament means.
The authority to dissolve the National Assembly is a formidable weapon that may be used to coerce its members who cannot welcome the prospect of another election campaign, its uncertainties and the time, toil, and money it will cost. It enables the holder of this authority to intimidate other functionaries of the state and usurp their powers and do things that the Constitution does not allow him.
In conclusion it may be said that the restoration of the president's authority to dissolve the National Assembly (Article 58-2b) is the part of the 17th amendment that is truly damaging to the viability of our democratic institutions. The amendment allowed the president to hold two offices concurrently, albeit, for a short period of time. I am of the view that if he continues to hold both of them beyond the named deadline, the courts will not sustain him. The law the parliament has recently passed concerning this matter will be of no avail.
The writer is professor emeritus of political science at the University of Massachusetts at Amherst, US.
Email: anwarsyed@cox.net
The high price of Bonapartism
On the whole, Pakistan's constitutional history makes for a bleak, deterministic reading. The mindset that readily acquiesces in military diktat, rubber-stamping the perpetuation of military rule in the shape of the "two-office" bill, is by no means a novel phenomenon.
Collaborating with the military is in the country's grand tradition. It can be linked to the peculiar constraints that the country faced at the time of its inception.
Ethnic diversity meant that there was a possible threat of an implosion within. At the same time, being new made the state vulnerable on its various frontiers. However, the most compelling and disorienting of security concerns at the time was this: the new state was somehow morphologically and, in fact, ideologically incomplete. It seemed to suffer from a strategic territorial deficit arising out of what was taken by our founding fathers as the unfinished business of partition.
It was security perceptionsthat were to shape the course of our nation's subsequent history. Certainly, they were to lead to what has surely proven the most unfortunate of happenings for a people otherwise possibly destined for better things: the militarization not just of the state but, in a way, of the Pakistani psyche. It was this, for instance, that contributed to the tragic dismemberment of the country in 1971. As borne out by the Hamoodur Rehman Commission report, our eastern wing as it was then was exposed to nothing less than a brutal army of occupation.
The occupation factor is one with which a supposedly federal Pakistan has by now grown fairly familiar. We may well ask why there are no constitutional safeguards against this and why, in this country, whenever it suits them, governments invoke raison d'etat to pacify their own people, especially, with our eastern half gone, in the minority provinces. Given that this is a federation, does this not bespeak a negation, at some level, of what can be thought of not just as human rights-related but as the very essence of constitutionality?
The truth is that framing a constitution is one thing but adhering to it quite another. While no less than four constitutions have been conferred on the country, none of these has remained intact beyond a limited period of time. The reason for this lies in our origins. Even when the de facto constitution of Pakistan in the guise of the Government of India Act of 1935 was in force, the Quaid himself would seem to have had grave doubts about its immunity from subversion by certain specific quarters. It was these very doubts that induced him to caution an assembly of high-ranking military officers in this regard during his speech at the Staff College in Quetta in June 1948.
The turning point in our history was, of course, the assassination of Liaquat Ali Khan. This would appear to have been facilitated by the machinations of the military-civil cabal comprising Ayub Khan, Iskandar Mirza and Ghulam Mohammed. The result is one we know all too well with the benefit of hindsight: the shift of power at this point from the political centre in Karachi to GHQ in Rawalpindi. The fate of Pakistan had accordingly been sealed. In view of the emergence of the new political axis in the country, democracy could not, henceforth, but be derailed. The constitutional abrogation syndrome was firmly in place.
Political instability, partly stemming from an imbalance of power between the centre and provinces, is traditionally cited as the reason for the usurpation of civil power in the new state. The rationale for Ayub's coup was linked by him to the issue of national security. Ayub had observed that the only alternative to martial law would have been the "disintegration and complete ruination of the country", adding that the situation was one of "total ... chaos" brought about by "self-seekers who... have ravaged the country." It is ironic that he then proceeded during the course of a decade to prove what self-seeking was all about.
As we know, his constitution was a barely camouflaged mechanism for absolutist rule. More significantly, it marked the moment of the lapse of the country into a form of legal destitution or institutional anarchy. The same can be said to have been true of the Zia constitution. It would seem to be equally applicable to the LFO of General Musharraf.
Pro-democracy elements are of the view that the 1973 Constitution, ratified by legitimately elected members of parliament belonging to all four of Pakistan's provinces ought to be restored since it comes closest to embodying federal and parliamentary ideals and is the country's only genuinely consensual constitutional document.
They argue that it is quite another matter that the federal aspect of this was practically abused as, for example, in the case of the military operation in Balochistan during Bhutto's regime. But is it? Does this not highlight a particular sort of mindset - one that imagines itself to be at liberty to twist the basic law of the country, especially in the name of national security, to suit its own highly questionable ends?
If, for instance, a Bhutto was able to conduct a repressive campaign where he did years ago, it is surely no accident that a Musharraf, armed with an all-enabling constitution, feels empowered to do the same today. This betokens a curious sort of continuity in our political and constitutional history and with this an overlap between two apparently divergent political types: the avowedly "democratic" civilian strongman and the military.
This does not augur well for the state. What is the answer? First, we must stop using national vulnerability, whether in the context of the war on terror or otherwise, as a political tool to repress our own people. In other words, we must initiate efforts to contain state fascism in the country. It goes without saying that, to this end, we must demilitarize our ethos to demonstrate our commitment to constitutionality, social justice and peace. Above all, what is called for is to release our provinces from the 57-year-old stranglehold of the centre.
It is indeed the need of the hour, more so than a wishy washy devolution. But for this we will first have to have a government of national consensus in place - one concerned with leading the country out of its present embattled state, restoring some semblance of law and order and, making day-to-day living slightly more tolerable for the common man.
How the Americans destroyed Fallujah
Even as US forces launch new offensives against Iraqi cities, reports of serious war crimes committed by the American military in their assault on Fallujah continue to flow in. As is becoming clearer with every passing day, a crime of immense proportions has been committed against the people of Fallujah.
Fallujah, the city of "one thousand mosques", is known in history for the piety of its people and their passion for freedom. Resistance against US occupation began here, last year when on April 28, the Americans opened fire on parents and children peacefully demonstrating against the continued military occupation of their school. Eighteen were killed and 60 injured. Until these wanton killings, not a single bullet had been fired at US soldiers in Fallujah or any city north of Baghdad. The way Fallujah's 300,000 people reacted to the April 28 massacre, made them a prime target for savage vengeance.
In its first attempt to recapture Fallujah in April this year, US firepower massacred some 600 civilians, but the marines were beaten back by the heroic resistance of its people. Overnight, Fallujah came to represent the burgeoning Iraqi resistance against American occupation.
The assault was preceded by weeks of intense air strikes and artillery fire to weaken the city's defences. US jets launched multiple attacks each day, pounding Fallujah with bombs, while the outer districts of the city were devastated by barrages from 155mm cannon and tanks. A large number of people died. With electricity and water cut off, and food and medicine already in short supply, nearly two thirds of the 300,000 population was forced to flee their homes.
Operation Phantom Fury commenced on the eve of laylat al-qadr, the holiest night of Ramadan, with the seizure of the city's major hospital across the Euphrates. Patients and doctors were dragged down and handcuffed to the floor, and their mobile phones were confiscated. Censorship was the prime motive, because during their first assault on Fallujah in April, hospital reports of mass civilian casualties had ignited a wave of furious demonstrations across the country.
The already devastated city was ringed with a cordon of over 10,000 heavily armed troops, supported by virtually the entire fleet of US warplanes in the Iraq theatre. Some 500 Iraqi, mainly Kurdish, soldiers, were also incorporated into the invasion force in order to put, in the words of Marine Brig.Gen. Hajlik, an "Iraqi face" on the operation. An ominous sign of the nature of this operation came in the form of leaflets and loudspeaker announcements ordering women, children and the elderly to leave the city, but warning that all males of "fighting age", between 15 and 45 years, would be turned back if they tried to leave.
Turned back for what purpose, Dave Lindroff of Counterpunch asks. If the purpose was to capture potential guerrillas, here were the men and boys trying to leave, offering themselves up to be arrested, investigated, interrogated and even held in detention. If they were really fighters, did it make sense to send them back into Fallujah where they could pick up weapons and possibly kill US soldiers? Clearly, the real goal all along was something else: It was to kill them all - insurgents, potential insurgents, and any other "fighting age" males, including boys as young as 15.
But the homicidal rampage unleashed on November 8 made no distinction between male or female, old or young, sick or wounded, and turned Fallujah into a virtual "free fire" zone. The capture of the main hospital was followed by the destruction of the city's medical facilities. During the weeklong operation, virtually all medical facilities were rendered inoperable.
The round-the-clock carpet bombing of office complexes, mosques, schools and homes suspected of sheltering resistance fighters went on for nearly two weeks reducing the city to a shambles and killing thousands of civilians. Hundreds were buried alive under the debris of their houses.
The usual method used for searching buildings in the captured areas was to hurl grenades and fire machineguns at houses before entering. Every male found was either shot dead or dragged away bound and hooded to detention centres. The wounded fared no better.
The behaviour of the marine in the well-publicized video showing the slaying of a wounded man in a mosque was no isolated incident as the western media would have us believe. Marines call executing wounded combatants "dead-checking", says Evan Wright, a journalist who watched such horrors all along the way from Basra to Baghdad, in April last year.
He thus quotes an enlisted marine recently returning from Iraq: "They teach us to do dead-checking when we're clearing rooms. You put two bullets into the guy's chest and one in the brain. But when you enter a room where guys are wounded you might not know if they're alive or dead. So they teach us to dead-check them by pressing them in the eye with your boot, because generally a person, even if he's faking being dead, will flinch if you poke him there. If he moves, you put a bullet in the brain. You do this to keep the momentum going when you're flowing through a building. You don't want a guy popping up behind you and shooting you."
There are other accounts of the macabre killing of civilians. Eyewitnesses told one newsman that US soldiers "rolled over wounded people in the street with tanks". Others were seen tying the dead bodies of resistance fighters to tanks and driving around with their "trophies." Tanks were also used to pull bodies to the soccer stadium to be buried or dumped into the Euphrates. Elderly women and old men carrying white flags were shot dead by US soldiers in the streets. Children bled to death in the arms of their parents.
Anyone trying to rescue people buried under the debris of their houses or help the wounded or bury the dead, was a fair target for American snipers. Dr Ali Abbas who left Fallujah in the second week of the assault told The Independent, "One of the things we noticed the most were the numbers of people killed by American snipers. They were not just men but women and some children as well. The youngest one I saw was a four-year-old boy. Almost all these people had been shot in the head, chest or neck."
City people attempting to escape the carnage were shot dead even if holding a white flag or white clothes over their heads to show they were not fighters.
Iraqi freedom fighters armed with little more than AK-47s and RPG launchers refusing to yield to overwhelming American firepower, fought till their last breath. The glaring asymmetry of the fight is illustrated by the report of a journalist on the third day of the invasion. To dislodge just one Iraqi sniper holding up US marines, he wrote, a three-story complex was hit with two 500 pound bombs, 35 155 mm artillery shells, 10 120 mm shells from Abram tanks and some 30,000 rounds from machineguns and small arms.
On top of these crimes, evidence is emerging of the wide use of banned weapons in Fallujah. Residents and doctors have long been reporting the use of chemical weapons and poison gas and of firebombs that horribly melted the corpses. It is now confirmed that besides showering whole areas with cluster bombs, the US military also used napalm and other chemical weapons against both combatants and civilians in Fallujah.
On the testimony of marines returning from Fallujah, Simon Jenkins of the Sunday Times describes the incidents in Fallujah like this: "Some artillery guns fired white phosphorous rounds that create a screen of fire that cannot be extinguished with water. Insurgents reported being attacked with a substance that melted their skin, a reaction consistent with white phosphorous burns."
Paul Gilfeather of The Daily Mirror filed a report on November 28 stating that US troops were secretly using outlawed napalm gas to wipe out remaining insurgents in and around Fallujah. Furious at the news of innocent civilians dying in napalm attacks, which turn victims into human fireballs as the gel bonds flames to flesh, some British MPs are said to be pressing Tony Blair to clarify whether or not he knew that the "banned weapon" was being used. He is also being asked to withdraw British troops if the US continues its use of napalm.
The US military is still preventing doctors, Red Cross teams and "embedded" media, from visiting scenes of the heaviest devastation and slaughter, so they won't be exposed to the tell-tale corpses that still clog the city streets.
Significantly, not a shred of evidence has emerged to back the US propaganda that the resistance comprised primarily foreign terrorists or that such terrorists were holding the city "hostage". On the contrary, it is clear from events that a legitimate armed struggle of Iraqi citizens against the US is under way.
Nothing is more illustrative of the degradation of the Muslim-Arab ruling cliques than the recent international ministerial conference on Iraq held at Sharm al-Sheikh on November 22-23, while the slaughter was still going on. Instead of using this international forum to expose the crime being perpetrated against the people of Fallujah and to demand an immediate halt to the ongoing genocide, Muslim-Arab leaders voted unanimously to bestow a semblance of legitimacy on the US occupation of Iraq and its bogus elections.
Far from halting US militarism, however, the subservience of Middle Eastern leaders will only encourage the Bush administration to press ahead with its broader plans for economic and strategic domination of the region.