A GENTLE reminder is necessary to all those now bemoaning the fact that the country of Pakistan now finds itself once again under a state of emergency imposed by a military man. Indeed, this is not the first emergency we have suffered in our existence – and that is apart from the periods of martial law with military rulers from 1958 to 1971, and from 1977 to 1988.

All those also, of the civil and uncivil societies, agitating in indignation about the suspension of the constitution, this 1973 constitution which is regarded as if it is a divinely inspired (or dictated) pristine pure document — almost sacred — need to cast their minds back to the birth of this document that is meant to regulate our lives and the policies of the leadership of this lacklustre land.

This constitution, the constitution of Zulfikar Ali Bhutto, father of Benazir, was drafted and redrafted during 1972-73 and finally promulgated on Aug 14, 1973.

During the promulgation ceremony, the maker of the constitution, already declared prime minister of Pakistan, had in his pocket a presidential order. Four hours after the constitution was promulgated and came into force, he produced the order, put in front of the already declared tame and acquiescing president, Fazal Elahi Chaudhary, and asked him to sign it, which of course he did without demur and probably without bothering to read and digest it.

The order is hereby reproduced. Why was it necessary? Well, then as now there was an undeclared need. The constitutional teeth had to be drawn. Bhutto had already jailed his friends of the Awami National Party, Wali Khan & Co., and various other political nuisances, and to keep them safely behind bars and out of his hair he needed to prolong the state of emergency and to suspend certain of our guaranteed fundamental rights (they remained imprisoned until President General Ziaul Haq freed them after throwing out Bhutto).

Now, was this an act of moral honesty? Was this constitution not made and promulgated with intentions mala fide?

It has, throughout its life, been amended and tailored to suit the leaders of the day, and it has been an unlucky document that has brought the country no good, no stability, and has never ushered in progress or tolerance or peace. Here is the first bit of historical constitutional hanky-panky:

“The Gazette of Pakistan, Extra, Aug 15, 1973, Islamabad: No.F24 (1)/73-Pub.-The following order made by the president on Aug 14, 1973 is hereby published for general information:

“Whereas Article 280 of the Constitution of the Islamic Republic of Pakistan provides that the proclamation of emergency issued on Nov 23, 1971 shall be deemed to be a proclamation of emergency issued under Article 232 thereof;

“And Whereas clause (2) of Article 233 of the said Constitution provides that while a proclamation of emergency is in force the president may, by order, declare that the right to move any court for the enforcement of such of the fundamental rights conferred by Chapter I of Part II of the Constitution as may be specified in the order, and any proceeding in any court which is for the enforcement, or involves the determination of any question as to the infringement, of the rights so specified shall remain suspended for the period during which the proclamation is in force ;

“And Whereas the aforesaid proclamation of emergency is in force;

“Now, Therefore, in exercise of the powers conferred by the said clause (2) of Article 233, the president is pleased to declare that the right to move any court, including the right to move the Supreme Court, vide clause (3) of Article 184, for the enforcement of the fundamental rights provided for in Articles 10 [Safeguards as to arrest and detention], 15 [Freedom of movement], 16 [Freedom of assembly], 17 [Freedom of association], 18 [Freedom of trade, business or profession], 19 [Freedom of speech], 23 [Provision as to property], 24 [Protection of property rights], 25 [Equality of citizens], and 27 [Safeguard against discrimination in services] of the Constitution, and all proceedings pending in any court which are for the enforcement, or involve the determination of any question as to the enforcement, of any of the said Rights shall remain suspended for the period during which the said Proclamation is in force.

Signed: Fazal Elahi Chaudhary, President. Counter-signed under Article 48(3) of the Constitution: Shah Nawaz Khan, Joint Secretary; Zulfikar Ali Bhutto, prime minister.”

This state of emergency remained in place until overtaken by the martial law order promulgated by President General Ziaul Haq in July 1977.

Now to now: An emergency has been declared by a military ruler, the chief of the army staff General Pervez Musharraf. After the seventh ‘Whereas’ we read: “… some judges by overstepping the limits of judicial authority have taken over the executive and legislative functions . . . . . .”

There are many questions that need to be asked in respect of the proclamation of emergency as issued on Nov 3, 2007. But above all, the people need the answer to one question: Does the chief of army staff have a right to determine the limits of judicial authority? If he has, then should not the courts be informed as to what they are?

After the eleventh ‘Whereas’ we are told that “the law and order situation in the country as well as the economy have been adversely affected and trichotomy of powers eroded. . . . . . .”.

With deep regret, and making somewhat of an understatement, we must admit that this God-given man-made country is blighted. Barring its Founder and Maker, the leaders it has had have been, to use common parlance, ‘the pits’.

They have never been able to get into their thick heads the exhortation made by Mr Jinnah that the first duty of any government is the imposition and maintenance of law and order to be administered by honest god-fearing individuals according to time-honoured norms.

General Musharraf has headed this country for over eight years – actually over nine years if one counts the chief of army staff as the head of the country. He started off with a bang – his seven point agenda was just what was needed. He outlined his intentions to turn around the state of the nation. The seven point agenda, in which was listed the imposition of law and order (but not at No.1 where it should have been), was never implemented. And that is why he and the country find themselves where they are today – to put it mildly, in somewhat of a bind.

He must lift his emergency – for if he does not there is no way forwards.

arfc@cyber.net.pk