Undo emergency first

Published February 29, 2008

VARIOUS sections of society are laying down priorities for the government-in-making but the top item on the nation’s agenda is withdrawal of the extra-constitutional measures announced under the cloak of ‘emergency’. This is the first task the new parliament must accomplish as otherwise it will not be possible to resume the journey towards democratic governance.

The issue has become urgent for several reasons. The ‘emergency’ (November 3 – December 15, 2007), by its author’s own word, was an extra-constitutional phase. Actions taken during the period were without any constitutional, legal or moral sanction. They cannot be allowed to block the parliament’s or government’s legitimate functioning. Speedy remedial action is necessary because illegal measures acquire legitimacy if left unchallenged for an appreciable time.

Even if Justice Munir’s exposition of Kelsen’s obscure theory, that everything an autocrat can get away with justifies itself, has not been heard for some time, nobody should forget that the Pakistan Judiciary has a tradition of legitimising unlawful actions if the people have acquiesced in them for years and if during this period their elected representatives have failed to overturn them.

Further, the havoc caused to the country’s constitutional order and the norms of responsible governance by actions taken during the ‘emergency’ is so enormous that their continuance in force will undermine some of the most fundamental rights of the people.

During the six weeks of ‘emergency’ the presidency unleashed on the people a Provisional Constitution Order, two constitution amendment orders (that altered 12 articles of the Constitution and added one), four President’s Orders and seven ordinances.

Since the prime objective of the ‘emergency’ was demolition of the superior courts the necessary provisions were made in the Provisional Constitution Order and Oath of Office (Judges) Order, both of November 3, 2007. The purge was extended protection vide a new indemnity provision (Article 270AAA of the constitution) in the Constitution Amendment Order of November 20, 2007 and the matter was again put beyond doubt in the Constitution (Second Amendment) Order of December 14 and yet again in the Order of December 15 that revoked the ‘emergency’. But much other harm to the polity was also done during the emergency.

Four of the amendments to the Constitution made by the Constitution (First Amendment) Order related to the creation of the Islamabad High Court. A more detailed order on the subject was issued on December 14, 2007. The court has started functioning since and the new parliament and government have been confronted with a fait accompli, a transaction concluded in a period of extra-constitutional deviation. Regardless of the merits of the case, the idea of a high court in Islamabad had been criticised by many jurists. The establishment obviously exploited the cover of ‘emergency’ to push a controversial piece of legislation and pre-empted a debate in parliament. No explanation has been offered as to why it was necessary to interfere with the hierarchy of courts by stealth.

The second constitution amendment order (December 14, 2007) introduced changes in six articles of the constitution, two of which are related to the presidency. The first amendment (Article 41) deletes the reference to Pervez Musharraf’s re-election on the completion of his first term and the purpose is obscure.

The second amendment, to Article 44, is quite strange. What the article said was: “Subject to the constitution, the President shall hold office for a term of five years from the day he enters upon his office.” Now the expression ‘subject to the constitution’ has been replaced with ‘Notwithstanding anything contained in the constitution’. Does this mean that a president will stay in office despite his incurring disqualification under any constitutional provision? If this interpretation is at all possible no constitutional order can allow this provision to hold the field even for a day.

Assembly session

The revocation of ‘emergency’ order also makes it clear, perhaps unnecessarily, that after the general election the president alone will decide when the newly-elected assemblies shall meet. If promotion of democracy were desired the provision could have mentioned a definite time-frame.

A serious consequence of actions taken under the cover of ‘emergency’ is the transformation of short-period ordinances into regular and permanent additions to the statute book.

The extra-constitutional regimes have developed a tradition of exempting ordinances issued while the constitution is in abeyance from the constitutional provision that limits the life of a presidential ordinance to four months unless it is approved by parliament or reissued. The ordinances issued by General Musharraf between October 1999 and November 2002, when the constitution was revived, are not subject to the lapse rule. These include the Industrial Relations Ordinance, Freedom of Information Ordinance, the Books, Newspapers, News Agencies Registration Ordinance, the Pemra Ordinance, the Press Council Ordinance, the Defamation Ordinance, etc. These laws have never received parliament’s approval.

Now the Provisional Constitution Order of November 3, issued by the Chief of Army Staff, contains a provision specifically designed to extend the life of ordinances indefinitely. Sec 5 of this order says:

5 – (1) An Ordinance promulgated by the President or by the Governor of a Province shall not be subject to any limitations as to duration prescribed in the constitution.

(2) The provisions of clause (1) shall also apply to an Ordinance issued by the President or by a Governor which was in force immediately before the commencement of the Proclamation of Emergency of the 3rd day of November, 2007.

Media curbs

What this section means in simple language is:

(a) All the seven ordinances issued by the President between November 3 and December 15, 2007 have been made regular enactments. These include the two ordinances that amended the basic media laws – the Press, Newspapers, News Agencies and Books Registration (Amendment) Ordinance, and the Pakistan Electronic Media Regulatory Authority (Third Amendment) Ordinance. The most oppressive feature of these amendments is the creation a bar to the use of any material “which defames or brings into ridicule the Head of State, or members of the armed forces, or executive, legislative or judicial organs of the state.”

A more draconian curb on the freedom of expression cannot be imagined. No politics is possible if opposition parties, or any citizens, cannot expose the executive as ridiculous or foolish. Had this provision been thought of earlier nobody would have been allowed to criticise Gen Yahya or Niazi for their blunders in 1971 or the commanders who failed in 1965 or 1971. The Pemra Ordinance also revived many harsh provisions of the amendment ordinance of June 2007 which had lapsed in October. Following nation-wide protest the government had promised to withdraw this measure. Now these oppressive provisions have become permanent law without any debate.

Also in this category are the ordinances that amended the Army Act of 1951 to provide for court martial of civilians and the Legal Practitioners and Bar Councils (Amendment) Ordinance that provided for high courts’ intervention in lawyers’ professional matters. Neither measure can bring credit to the statute book. The need for their cancellation cannot be exaggerated.

(b) The dozens of temporary ordinances that have been kept alive year after year by reissuing them every four months have also been regularised. These ordinances include measures of far-reaching implications. For instance, amendments to the Police Order 2000 have been reissued every four months since 2003. The Police Order 2000 was never debated in parliament. That was bad enough, but what is infinitely worse is that the opportunity of a parliamentary scrutiny of the important law during a debate on amendments has been lost.

Ratification of ordinance

The National Reconciliation Ordinance (NRO), whose survival has just been confirmed by the apex court, is included in the list of these ordinances. The ordinance should have lapsed on February 4, but for the miracle of ‘emergency’. Nobody needs to waste time on this ordinance. If it is important the measure can be issued as a fresh ordinance any time.

The result is that scores of legal instruments have been sanctified without being endorsed by the legitimate law-making body – the parliament. This amounts to interfering with the incoming parliament’s right to scrutinise all ad hoc legislation. True, the parliament’s right to review any enactment is not affected but the procedure is much more difficult than the method that obliged the government to submit ordinances for ratification.

The need to clear the backlog of ordinances awaiting regularisation has been stressed more than once. The practice of reissuing ordinances, sometimes on the eve of National Assembly sessions, is not only a most objectionable way of law-making, it also undermines the justice system. It was once suggested that all the ordinances awaiting ratification might be introduced in parliament in a single package and the formality of approval expeditiously completed. That option is still available but nobody will see the adoption of laws under emergency as a fair solution. It offends against all canons of justice, democracy and even commonsense.



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