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| March 16, 2008 | Sunday | Rabi-ul-Awwal 7, 1429 |
Trying Israeli war criminals
A burial for solace?
Constitutional crisis or ignorance of law?
OTHER VOICES: Indian Press
NOW that the session of the National Assembly has been called and election euphoria is receding, it is time for some serious reflection. There seems to be a consensus on the issue that another constitutional crisis is facing the country and in order to come out of it the politicians need to make compromises.
AS the experience of the last National Assembly shows, the successful completion of a mandated five-year term in parliament is not enough to boost democracy in the country. The new Assembly, which holds its inaugural session tomorrow, should remember this as it pushes forward with its agenda of delivering on its pledges to those who voted it into office. It has won power from the platform of democracy. Hopefully, unlike its predecessor, it will not degenerate into a rubber-stamp body for endorsing presidential decrees or be remembered for its lacklustre performance. The last parliament — the result of controversial polls — has a sorry record in this regard. A lack of quorum characterised a number of Assembly sessions, leading the Speaker to frequently delay the business of the day. This was in part responsible for the fact that only 50 bills — including the notorious Seventeenth Amendment — were adopted in five years, while 150 remained pending. But it was not sheer indolence on the part of parliamentarians that created this atmosphere of lethargy. Much of it can be attributed to specific actions by the establishment to kill the spirit of democracy, such as engineering a ‘deal’ between the government and the MMA to get the latter to endorse the Seventeenth Amendment.
Perhaps the first and foremost task of the new parliament should be to rectify the effects of five years of quasi-military rule that has been a blow to the growth of democracy. For this, democratic traditions have to be set in the Assembly itself. These would include convening regular sessions of parliament, electing a Speaker whose approach would be non-partisan in the conduct of House proceedings, and holding regular and comprehensive debates on bills and other legislative matters. Moreover, some semblance of courteous and orderly conduct, even while refuting each other’s stance, is needed. All too often, squabbling and personal acrimony have overshadowed the discussion of matters of national importance, thus diminishing the stature of what should be regarded as an august body. If the Assembly behaves as one that is truly endeavouring to represent the people’s wishes, and at the same time respects dissenting opinion, it will earn the people’s esteem. Some of the issues that will come before the new NA will pose a challenge to its members’ political sagacity. The judges’ issue will be on top of their agenda and it is too early to say how it will be addressed. But one expects the newly elected MNAs to keep the decorum of the house and conduct themselves with dignity.
A word of caution for the leaders of the two main parties who did not contest elections to the National Assembly: it would be a wise step to refrain from micromanaging their party representatives from behind the scenes and allow the parliamentarians some breathing space. While the latter would naturally be expected to follow the broader party principles on a specific issue, there would be much to gain from a healthy debate incorporating diverse perspectives. After all, sound laws do not merely evolve from the majority consensus, they are also a product of the debate leading up to it.
ISRAEL can commit no crime, and a criticism of the Jewish state’s policies amounts to anti-Semitism. This is the fundamental principle on which those who run today’s world operate. Thus to expect the world to try Israelis for war crimes, as demanded by the OIC secretary general, is to ask for the moon. In fact, the Organisation of the Islamic Conference itself has not bothered to set up a court which could try known Israeli war criminals. Speaking with reference to the situation in the occupied territories, Mr Ekmeleddin Ihsanoglu said at the OIC session that began in Dakar on Thursday that Israeli crimes should be documented and those guilty of “aggressions and heinous crimes” be brought before such judicial institutions as the International Criminal Court. The documentation he spoke of is not much of a problem. It already exists in massive volumes of books and UN records, and nobody has done this with greater care that many western scholars and rights bodies. Of late, dissidents in Israel itself have begun to gather courage and draw the world’s attention to acts for which a violation of fundamental rights would be an understatement. What the Zionists have been guilty of since the very founding of the state of Israel in 1948 and even under the ‘mandate’ amounts to ethnic cleansing, massacres, the flattening of Arab villages, confiscation of Palestinian property running into billions of dollars (which are still used to finance the Jews’ migration to Israel), destruction of Palestinian farms and orchards, and the diversion of water to Jewish settlements. Deir Yassin was just one of the massacres. Those involved in these crimes were such ‘holy’ names as Menachem Begin, Yitzhak Rabin, Yitzhak Shamir, Rafael Eaton and many more.
The western world has no interest in trying them, because those who planted Israel in the heart of the Arab-Islamic world have a geopolitical and economic interest in its existence. If the Israeli war criminals are to be given justice to ease the anguish of the Palestinians, an OIC court set up for trying them may not achieve much. The OIC could do more by showing solidarity with the Palestinians and strengthening their hands politically, economically and strategically to resist Israeli oppression.
HAPLESS families of some six victims of the Oct 18 bombings in Karachi will agree that it is perhaps far easier to bury the dead than to bury hope. The DNA investigations of matching blood samples with body parts seem to have fallen by the wayside, and have thrown up much heartbreak and uncertainty. Relatives have battled an excruciating limbo for the past five months as they remain unaware of whether their loved ones have been buried anonymously or whether they should await conclusive reports of the much-touted DNA inquiry. Inept investigators and concerned institutions expressed repeated ignorance each time they were approached by the kin of the lost and now any chance of tracing the missing has become more remote as their remains have been buried. According to reports published in this newspaper, police officials blame the A.Q. Khan Institute of Biotechnology and Genetic Engineering for this extended and futile exercise. Blood samples were taken twice but to no avail. Hence it would be unfair to blame the police alone as it was no more than an intermediary in this case. That said, all the involved departments must be held accountable for the anguish and desperation they have caused to the relations for so long.
For a tragedy of this magnitude, it is beyond belief that there was not a single mechanism to monitor and guarantee comprehensive reports from concerned sectors. A greater crime is that no competent institution such as the Edhi Foundation was assigned the task of ensuring timely provision of blood results. The PPP provincial leadership’s tall claims of ‘expediting the process’ when the party takes over fail to assuage the endless despair of these families. It is unlikely that the party will ever be able to restore their faith in the system again or elicit the same brand of maddened loyalty that led to such loss. In the end, these relatives are alone in their battle for what is a fundamental right — a vigilant, efficient inquest into the fate of the ones they lost.
The general discussion in the country on this complex legal issue is sketchy and often out of context.
The fallacy of certain so-called ‘crucial issues’ will be established when these are discussed in the light of the events of Nov 3, 2007 and after. Information as to who was the legal architect of the acts of Nov 3 is not in the public domain.
However, an article meaningfully titled ‘On Retainer in Pakistan, to Ease Military Ruler’s Path’, published in The New York Times of Dec 15, attributes those moves to none other but Mr Sharifuddin Pirzada. If we go by this article, it appears that the architect either overlooked some vital areas or external pressures on President Musharraf prevented a picture-perfect ending to the acts of
Nov 3.
In this article it will be argued that at this point in time the politicians should not lose on the floor of parliament on account of an ignorance of law what was won for them in the streets by the people of Pakistan, especially the lawyers. From a legal standpoint the politicians never had it so good in the constitutional history of the country — all they need to do now is to show maturity and a commitment to constitutionalism.
On Nov 3, 2007, President Musharraf, in his capacity as the army chief, issued the proclamation under which an emergency was imposed in the country and the Constitution was purportedly suspended. With this a Provisional Constitution Order was issued which gave the president the power to amend the Constitution as well as any other law of the country simply through the issuance of an executive order.
Simultaneously, a Judges Oath of Office Order was issued which required that judges taking oath under it swear to “abide by the provisions of the Proclamation of Emergency of Nov 3, 2007, the Provisional Constitutional Order No. 1 of 2007 and the Code of Conduct issued by the Supreme Judicial Council”.
In a most commendable feat of constitutionalism, 15 out of the 20 judges of the Supreme Court and 37 of the country’s 77 high court judges refused to take this oath, whereafter these judges were immediately discharged and placed under house arrest.
The above demonstrates that the Constitution was completely subverted and functions of the three organs of the state were subjected to the will of an individual, i.e. President Musharraf. This was in sharp contrast to the past martial laws of 1958, 1969 and 1977 where, after the abrogation/suspension of respective constitutions, the country was put under the control of the armed forces of Pakistan. This time round all the powers were assigned to an individual, a sad reflection on our descent as a nation.
As all the acts of Nov 3, 2007 were patently unconstitutional, a seven-member full bench of the pre-PCO Supreme Court passed an order the same day declaring them illegal. The government challenged this order in the Wajihuddin Ahmed case on Nov 6, calling the impugned order a “purported” order. The post-PCO Supreme Court held that this order was invalid as it was passed by the court after the Constitution was put in abeyance. It appears that just three days after the issuance of the Proclamation of Emergency, the Supreme Court had accepted it as a fait accompli.
On Nov 23, in Tikka Iqbal Mohammad Khan vs Gen Pervez Musharraf and others, a seven-member bench of the Supreme Court of Pakistan again upheld the Proclamation of Emergency, the PCO and the Judges Oath Order, though with certain reservations.
On Nov 21, the president issued a Constitution amendment order that sought the insertion of a brand new Article 270 AAA and amendments in Articles 270 B and C of the Constitution. The new Article 270 AAA sought to give wholesale validity to all actions taken and all laws made between Nov 3 and the revocation of emergency rule. Article 270 C was further amended to provide indemnity to those judges who took oath under the Judges Oath Order and to make permanent the removal of judges who had refused to take oath under this order.
Article 6 of the Constitution declares that anyone who abrogates or subverts the Constitution shall be guilty of high treason. In order to avoid an application of Article 6, all dictators insist on obtaining validations from parliament before they restore the Constitution, which was the case in 1977 and 1999 when validities were inserted in the Constitution through PO No 14 of 1985 and the Legal Framework Order 2002 respectively. However, on Dec 15, emergency was unilaterally revoked and the Constitution “as amended” was revived.
It was indeed at this point that President Musharraf had to depart from the tried and trusted constitutional wisdom of the past relating to lifting of martial law. All the dictators knew that ultimate relief lay with parliament as only the elected legislature has unfettered powers to make any amendment in the Constitution under Article 239. Therefore, provision of such indemnity by parliament has always been a precondition for a quid pro quo lifting of martial law.
The situation this time is totally different as ‘martial law’ has already been lifted and the politicians are under no compulsion to provide an indemnity. This gives the politicians enormous strength.
The Nov 23 decision of the Supreme Court in the Tikka Iqbal Mohammad Khan case does not grant the Musharraf camp the indemnity it actually needs to stay out of trouble. Not only that, this judgment can be reversed in the future by the Supreme Court itself. The post-PCO decision does not issue a carte blanche.
There are several caveats in this judgment which will indeed be utilised by creative lawyers in the future to challenge acts undertaken during the proclamation period.
The writer is a commercial lawyer and an advocate of the High Court.
Joining hands
Deccan Herald
THIS is a defining moment in Pakistan’s history. The country’s two main political parties … have agreed to put aside their long-standing rivalry to share power.
This is a boost for democracy in Pakistan, as the failure of the two parties to come together to form a coalition government would have opened up space for the military to enter the political arena again…. It is no small achievement that they have reached an agreement now….
An issue that was proving a difficult obstacle on the way to their reaching an agreement was the fate of the Supreme Court judges who had been sacked in November by President Pervez Musharraf. The two parties have now agreed to reinstate the sacked judges … through a parliamentary resolution.
The road ahead for the PPP-PML-N coalition government is far from smooth. It can expect the military to engineer differences to bring about the collapse of the government. The coalition will have to close ranks against the forces opposed to democracy in the country….
If democracy remains fragile in Pakistan it is as much a result of the machinations of the military as it is of intrigues of the democratic parties. The PPP and the PML-N have a historic opportunity now to work together to ensure that the military’s wings are clipped.
If they fail to act soon to constitutionally restrict the military’s role in the country’s political life, they will provide space for its reassertion.… [T]he people ... voted against the king’s party — the PML-Q. That was a clear indication that they want an end to the military sitting in the driver’s seat.... It is now for the ruling coalition to ensure that this happens. — (March 12)
Extra-clever VVIPs
The Statesman
SINCE there was so much ‘like father, like son’ to what the spin doctors projected as an Orissa Odyssey, it was perhaps inevitable that Rahul Gandhi would seek to make a hero of himself by giving his security detail the slip. After all Rajiv once thought he had done something wonderful by driving his new SUV, outracing the accompanying Ambassadors carrying his bodyguards, and then waiting in the open … to offer them a ridiculing welcome.
This is not the first time that Rahul has breached the security code, but his late-night escapade in Koraput was decidedly more risky than … mingling with the crowds at a public rally. No marks are due to the BJP member who tried to make political capital of the issue … but demerits would be in order for the minister … who opted for sarcasm in what appeared a defence of his leader …
Yet the brief furore in the Lok Sabha and the typically petty point-scoring exercise must not be permitted to cloud what is a most serious matter. For had something gone wrong when Rahul was exhibiting his immaturity and irresponsibility several police officials … would have been in serious trouble for no fault of their own, and … a political tornado would have been unleashed.
More importantly, what has been brought into focus is how politicians seem to ignore the huge costs and effort involved in their security operations — not just in terms of the expenses incurred on Special Protection Group cover but also the local costs of the bandobast. Never mind that during a VVIP visit [the] aam aadmi is denied the precious little policing extended to him. Can there be any justification for such squandering of taxpayer’s money?…. — (March 15)