IT has taken great strength of character for the Monticello doctor, Babar Awan, not only to resign from his powerful ministry of law but to bring himself round to pleading for and defending a man for whom at one time he reportedly bore a deep dislike — which he, again reportedly, manifested publicly and proudly.

That he has now seen the light — rather like St Paul on the road to Damascus — is laudable.

In the reference submitted on April 21 to the Supreme Court he requested the court to revisit the case of Zulfiqar Ali Bhutto, former president, martial law administrator (the first civilian in history) and prime minister, over which much justifiable doubt must hang.

His first question on a point of law dealt with fun-damental rights: “Whether the decision of the Lahore High Court as well as the Supreme Court of Pakistan in the murder trial of Shaheed Zulfikar Ali Bhutto meets the requirement of fundamental rights as guaranteed under Article 4 Sub –Article (1) and (2)(a), Article 8, Article 9, Article 10A/due process, Article 14, Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973.

If it does not, its effects and consequences?”

To quote: “Fundamental rights are a generally regarded set of entitlements in the context of a legal system, wherein such system is itself said to be based upon this same set of basic, fundamental or inalienable entitlements or ‘rights’.

“Such rights thus belong without presumption or cost of privilege to all human beings under such jurisdiction. The concept of human rights has been promoted as a legal concept in large part due to the idea that human beings have such ‘fundamental’ rights, such that transcend all jurisdiction, but are typically reinforced in different ways and with different emphasis within different legal systems.”

Now let us see how fundamental rights were treated four hours after the promulgation of the 1973 constitution on Aug 14, 1973 (with particular reference to Articles 10 and 25). This story is being repeated for the umpteenth time as it apparently remains unknown by those who should know — for instance, a law minister of any standing.

The constitution was promulgated at noon on Independence Day 1973. The same afternoon, prime minister Bhutto ordered president Fazal Elahi Chaudhry, to sign an order whereby the Proclamation of Emergency issued on Nov 23, 1971 was, as I wrote earlier, “declared to be still in force, the reason being that while in force the president was empowered to order that the right to move any court for the enforcement of the fundamental rights conferred in the constitution was suspended and would remain suspended for the period the proclamation was in force”. No court could be approached.

As I had also noted, in a matter of hours, the people were deprived of 10 major fundamental rights guaranteed to them by the constitution. These were Articles 10, 15, 16, 17, 18, 19, 23, 24, 25 and 27.

Article 10: “Safeguards as to arrest and detention — (1) No person who is arrested shall be detained in custody without being informed, as soon as he may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.” Then follow clauses (2), (3) and (4) dealing further with the matter.

Article 25: “Equality of citizens — (1) All citizens are equal before law and are entitled to equal protection of law.” (Subsequent clauses deal with gender discrimination.)

As to the further treatment of this maltreated constitution, Rafi Raza, once a PPP minister and a close friend and aide to ZAB, has recounted in his book Zulfikar Ali Bhutto and Pakistan: 1967-1977 how “Seven amendments were made in the constitution between May 1974 and May 1977. Mainly, they undermined the rights of individuals and the judiciary.”

It must also be added that in six cases of the seven, the Rules of Procedure, governing parliamentary procedure under the same constitution, were suspended and the amendments rushed through — bills being introduced and passed on the same day or the next.

The First Amendment allowed the federal government to ban political parties, formed or “operating in a manner prejudicial to the sovereignty or integrity of Pakistan”, subject to a final decision of the Supreme Court. At this point in time, it has to be admitted that this federal government is most kind when it comes to political parties and their manner of ‘operating’.

According to this amendment, as writes Raza, “the writ jurisdiction of the high courts, which could not previously be exercised in favour of a member of the armed forces, was extended to exclude any person ‘who is for the time being subject to any law relating to any of those forces’”. Yet another feather in the military cap.

The Second Amendment defined a Muslim by stripping an entire community of its majority rights. The Third Amendment affected the safeguards against arrest and detention under Article 10 and facilitated the continuation of the Proclamation of Emergency. So much for fundamental rights.

arfc@cyber.net.pk