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| August 10, 2007 | Friday | Rajab 25, 1428 |
A stage-managed leak
ANY intention to issue a new proclamation of emergency has been firmly and authoritatively denied. Grapevine sources have not only confirmed this but also leaked out the identity of the overseas benefactor. But for hours on end on Wednesday evening and Thursday morning practically the whole country was in the grip of an emergency scare, and writers were in a competition to paint dread scenarios.
Considering that the people of Pakistan have survived a series of proclamations of emergency, issued under one pretext or another, the signs of anxiety bordering on panic seen were truly amazing.
Now that everybody believes a respite has been gained, it is possible to examine whether the fears fuelled by the media were genuine and what could happen if the move to impose a new emergency is not given up.
What needs to be understood at the outset is that a proclamation of emergency is only an enabling measure that makes it possible for the executive to assume certain powers that it normally does not have. What a government wishes to achieve under the cover of emergency, such as suspension of fundamental rights, requires separate legislative instruments.
Not only that all lights in the country do not go out the moment a proclamation is issued, the government’s ability to act as it pleases under such a proclamation has been reduced much in the recent period. It cannot get away now with much of what it could do some years ago.
The first question that arose on Wednesday was about the status of the May 1998 proclamation of emergency. That proclamation was issued by a constitutional authority and it was repealed neither by the Nawaz Sharif government nor by General Pervez Musharraf.
The latter did issue a new proclamation of emergency on 14 October 1999 which made no reference to the 1998 measure. However, the Provisional Constitution Order No 1 released in the early hours of 15 October had the following paragraph (No 6):
“The Proclamation of emergency issued on 28th of May 1998, shall continue but subject to the provisions of proclamation of emergency dated 14th day of October 1999 and this Provisional Constitution Order and any Order made thereunder.”
In plain words on Oct 15, 1999 Pakistan came under two proclamations and the provisions of the latter measure overrode the contents of the former.
That the proclamation of 14th October 1999 as well as the PCO No 1 lapsed or could be deemed to have lapsed on the revival of the Constitution after the 2002 polls is not difficult to understand. But the convention governments have followed is that if a regular act amounting to law is interrupted or extinguished by a temporary measure (such as an ordinance) it stands revived the moment the intruding instrument disappears. It could thus be argued, by the traditional establishment at least, that the proclamation of 1998 is still in force and will so remain until it is withdrawn in the prescribed manner.
The battery of heavy legal guns the government has at its disposal could not have been unaware of the status of the 1998 proclamation (at least Arbab Ghulam Rahim was not) and if they advised the issuance of a fresh proclamation they might have wanted to avoid litigation on this point, for which they did not perhaps have sufficient time. The issue may be described as ‘pending’.
In order to understand what could have been done under a fresh emergency, one may recall the steps taken under the 1998 proclamation.
After issuing the proclamation under Article 232 of the Constitution the president invoked Article 233 (2) to suspend all fundamental rights. On this action, being challenged in the Supreme Court, the president amended his order and limited the damage to Articles 10, 15, 16, 17, 18, 19, 23, 24 and 25 (guarantees against arbitrary arrest and rights to freedoms of movement, assembly, association, trade or profession, speech, property and equality before law.) Both orders were struck down by the Supreme Court.
The government also promulgated an ordinance to freeze all foreign currency accounts. This ordinance too did not survive a challenge in superior courts.
Another step taken by the government was suspension of the Sindh provincial government, which led to some quite hilarious episodes, and eventually the federal government took the judicial battle.
Now, theoretically, that is in terms of the on-and-off Constitution, a proclamation of emergency enables the federation to suspend fundamental rights and the right of access to courts for restoration of these rights. It can also get a provincial government suspended/dismissed by the governor.
However, the exercise of powers the Constitution gives the federal government can be challenged and can be overturned, as evident from the 1998 cases. The ouster of superior courts jurisdiction in fundamental rights cases worked well only in 1981 under Gen Zia’s PCO. But that was after Z.A. Bhutto had been hanged, the hijacking of a PIA plane had given the CMLA an additional excuse, the world had started smiling on Gen Zia in the wake of Soviet Union’s incursion into Afghanistan, and the masses had been brutalised.
Anybody who suggests 1981 can be repeated in 2007 will only increase the regime’s difficulties. The idea that courts could be locked up as soon as a proclamation of emergency was issued is a figment of an immature mind.
The fact is that the people at home and powerful patrons abroad have taken quite a strong position on the issues/situations that might have made the official troubleshooters think of an escape route via emergency. Postponement of the general election, retention of two offices by Gen Musharraf beyond Dec 31 or his election by an about-to-expire electoral college and this while in uniform, etc, under the cover of emergency will arouse much greater opposition than might be the case without emergency.
This too should be known to Islamabad’s gurus. Then why did they try to cause a scare by an obviously stage-managed leak? Either they wanted to prevent the judiciary from taking its recent success too seriously or the idea was to test the public reaction to a new dose of emergency.
The move has backfired on both counts. Both the judiciary and the people have been given time to think up remedial/resistance plans. As it is, the proclamation of emergency seems to have been shot down by the public even before it was issued.
The lesson of the affair is that in the present climate it will be extremely difficult to sustain anti-democracy measures even under the cover of emergency and that such steps could produce a result completely opposite to the one desired by their authors. For once status quo is a welcome expression.
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