THE Constitution of Pakistan is in abeyance and, accordingly, some parts of the Constitution Avenue of the capital, since the imposition of the emergency, has been for all practical purposes a virtually ‘no-go’ area. The Legislature having been dissolved, access to the Supreme Court has also been barred. Thus all approaches leading to the three pillars of the state — the legislature, the executive and the judiciary — located on the Constitution Avenue have been barricaded. This sealing off of the state organs to the public is symbolic of how democracy is interpreted and understood in Pakistan.

The Asian Development Bank was perhaps not quite off the mark when it said: “Pakistan has provided a challenging context in which to implement a programme of development assistance — wars and cross border conflicts with its neighbours; strong ethnic and cultural divisions; continued existence of feudal social relations in some parts; a complex structure of government, three periods of military rule; 10 changes in the leadership of civilian governments during 1988-1999; erratic economic growth, with periods of faster growth not sustained and not translated into better social outcomes; rising poverty rates throughout the 1990s; international sanctions following the testing of a nuclear weapon in 1998; serving as a key ally in the ‘war on terror’ following the terrorist attacks of 11 September 2001 in the US; poor governance and endemic corruption; and social indicators that are among the worst in Asia”.

The international financial institutions (IFIs) who had lent over $300 million to Pakistan for Access to Justice Programme (AJP) must be scratching their heads on the outcome. The pre-PCO Supreme Court had 27,615 cases pending as on January 1, 2005 and as many as 15,802 cases were instituted over the 18 succeeding months, taking the total pending cases to 43,417 on June 30, 2006.

During this period, the apex court disposed of 28,433 cases greatly reducing the backlog.

In the month since November 3, the post-PCO Supreme Court has disposed of not more than five cases. It is no comparison but this is where things stand at present given a similar situation at the high courts and the lower judiciary. This is what you call “Justice for All” when 70 superior court judges out of 95 or so are sent home unceremoniously with a stroke of the ‘mighty’ pen. Is it in this background that the government is now offering re- instatement of all judges, except the deposed Chief Justice of Pakistan, Iftikhar Mohammad Chaudhry?

The plight of common people can be visualised by the example of one Mr Daud. He had to send a general power of attorney to his father who lives in Europe.

He approached the Ministry of Foreign Affairs for attestation of the document. He was told to first get that attested by a magistrate class-1. Then the ordeal began. But when next morning he went to the district courts in Islamabad he found all the magistrates were attending a meeting at the ministry of interior.

The next day most of the magistrates were on emergency field duties. On the fourth day he used a connection to meet a magistrate who told him only a Rawalpindi magistrate could attest the document.

His field of efforts now shifted to Rawalpindi where he was told that since the document did not relate to a property in Pakistan, they could not attest a power of attorney. He re-approached the Foreign Office with the explanation but in vain.

All legal avenues failed, he contacted a ‘munshi’ of a magistrate class-1. No legal arguments were raised. The document was stamped, signed and authenticated in a matter of minutes. The cost was only Rs500. The paper was authenticated by the foreign off the very next day.

Daud’s ordeal is not unique. This is happening to hundreds of people in the lower courts across the country.

But emergency duties of the law men have brought law to a standstill. Perhaps this is how it is going to be as long as the bars to the Constitution Avenue are not lifted.

DISCUSSION is currently raging about the curbs placed on the media but we seem to be losing sight of the big picture. Peaceful resistance against wanton authoritarianism stands in danger of being lost in arguments that are not really germane to the real issues.

In terms of the forced removal of certain anchors, for example, a number of people argue that these channels / shows had crossed the lines of good journalistic practice. While many believe that the anchors ought to have exercised greater restraint, the fact is that they did not and were pulled off-air. The implication in the argument therefore becomes that the hosts deserved what they got. Similarly, internet groups are discussing whether certain people were known to have been touts of the intelligence agencies, and wrote/broadcast promotional news or spread misinformation upon payment. The underlying thread is that a reputation acquired of earlier corruption, with or without proof, was reason enough for them to get their comeuppance.

This amounts to missing the real point. The central issue is not whether some journalists or organisations were corrupt or unethical. The basic question is whether the government’s reprisals were within the realm of the law. Under the Pemra code even as it existed before Nov 3, set procedures existed for challenging media organisations. These included formal complaints and the serving of show-cause notices. They did not include the right to lean on cable operators or foreign governments to pull the plug.

That the government first amended the law to give itself the authority to do what would have been illegal earlier – although even the amendments do not allow using clout – only throws into sharper relief the basic, ethical illegality of the government giving itself increased powers whenever it feels like it.

The question of journalistic malpractice is secondary to the real issue, which is that in taking channels off-air arbitrarily and in a manner that lay outside its jurisdiction, the government overstepped its authority. That is what the protests are about. If any group or individual suspects a journalist of malpractice, let it be settled in court.

Secondly, in discussing how – and how far to go – to protest against the clampdown on the media, some journalistic organisations have given in to the temptation of involving the wage board award, the issue of contract employees and whether the average hack is being hoodwinked into fighting the battle of the organisation owners who have, in some cases, denied workers their due rights.

This amounts to sidelining the core issue. Certainly, these matters are important: the financial benefit of the wage board award has been kept pending for years and it is patently unfair to not regularise contract employees. But in the current situation, what is at stake is not the average journalist’s financial status but his right to report and investigate. As a senior journalist said, the point is that we have the right to report on the actions of any group or individual, in the government or out of it, as long as we have proof. This is the right that is being taken away. And this has little to do with the sticking points mentioned above. Bringing extraneous matters into the picture at this point amounts to dissipating the energy and clouding the reasons behind the protests.

Furthermore, this is not the owners’ battle but that of every journalist who chose to express himself through the medium of the press. The owners’ involvement is often financial, not ideological. They could, perhaps, just as easily run a textile mill. But it is the reporters, editors, photographers and columnists who constitute the voice of the press, who subscribe to the ideology of journalism. We’re the ones whose work is reduced to meaninglessness if the curbs remain on the books.

When journalists were arrested in Karachi some days ago and released on the intervention of senior governmental figures, some people thanked the saviours and criticised the owners of their organisations for not having stepped in. All very good, but the point is not that the journalists were released thanks to official intervention. The point is that the authorities had no call to pick them up in the first place, since they had a basic right to peacefully register their protest. The central issue is the legality of the imposition of the emergency and the sidelining of the constitution and fundamental human rights.

As for the owners not stepping in to intervene . . . well, it would have been good if they had and it may have increased their own standing amongst working journalists. But they did not instruct us to attend protests. That was a choice we made for ourselves.

— hmumtaz@dawn.com