Sweeping legal changes
Dr. Ikramul Haq[*]
During 2002 Pakistan witnessed an avalanche of legal changes in various laws including the 1973 constitution, through innumerable Presidential Ordinances, aimed at ensuring “continuity” of Musharraf’s rule and policies. These changes — positive or negative, justified or unjustified, valid or invalid — generated a lot of controversies as concerned quarters conceive these ensuring perpetuation of a military rule with a controlled civil government. President Musharraf on the contrary has been trying to convince the nation that transferring of absolute power in his hands through these changes is necessary to save the nation from possible “threat” from proven incompetent and corrupt politicians and that there is no element of self-aggrandisement in the whole process of reform initiated by him.
The General’s agenda of constitutional and legal reforms has changed the entire political scene of Pakistan. From grass-root democracy through devolution plan to the infamous Legal Framework Order (LFO) aimed at shifting powers from the Parliament to the President, General Musharraf did not mince any words to portray himself as a great saviour. This self-assumed role has obviously motivated him to bring sweeping legal changes in all those statutes that have a vital link with the State apparatus and governance. The critics of President Musharraf have been raising fundamental objection as to how an individual can be given absolute authority to amend the supreme law of land.
Their main concern is that such dictatorial exercise of power in itself negates the very concept of democratic rule, which the General ostensibly wants to introduce at gross root level through a loyal system of administrators (nazims and their subordinates). According to them the experiment of local governments is not to achieve devolution of power but to create a depoliticised system to his advantage. It is reminiscent of Great Moguls’ system of mansabdars, who while enforcing the writ of the Emperor were more loyal than the King. History is full of accounts of their corruption and despotic methods to keep the general masses and adversaries of the King under control, which the critics’ claim is the common modus operandi of all despotic rulers in the history of mankind. If seen in this context, the two major enactments (Devolution Ordinance of 2001 and LFO of 2002) are classic examples of strengthening a dictatorial rule with sugar-coated attractive slogans of reforming and saving the country.
- During his three years’ rule, President Musharraf issued 297 Ordinances and plethora of constitutional amendments including infamous LFO. Most of these laws were promulgated at the fag end of military rule. In year 2002 alone, 135 Ordinances were issued, about 100 of these during the months of October and November 2002.
- The most irritating laws were draconian powers given to NAB and allowing the police to detain a suspect for a year without any charge.
- New Press laws to muzzle freedom of expression and draconian laws to curtail civil liberties were widely criticized at home and abroad, as such laws certainly jeopardize rule of law.
The third group perceives all the changes made by Musharraf and his “team” as necessary conditionalities imposed by the foreign masters to ensure their military and economic interests. They speak with reference to the meeting held by the Musharraf’s Cabinet on 27th March 2002 in which it was decided “to protect all the decisions and actions of the government by introducing amendments to the Constitution, if needed.” In the said meeting adviser to chief executive, Syed Sharifuddin Pirzada, was specially invited to brief about various options to indemnify all the decisions and actions of the government in the absence of the National Assembly. Mr Pirzada made an extensive presentation including the merits and demerits of the 8th Amendment. He also touched upon the12th and 13th amendments and suggested different options to protect the government’s actions after general elections in October 2002.
The representative of foreign donors, then Finance Minister (now Adviser but de facto controller of Finance Ministry), Mr. Shaukat Aziz told General Musharraf that members of the international donor community were “concerned” about sensitive issues and wanted to know how the protection and continuance of the reforms could be ensured. The “sensitive” issues we all know relate to our perpetual enslavement through IMF and World Bank policies.
Whatever was the motive behind these legal changes, the fact remains that our survival now depends on how we protect our national interests in the difficult realities around us. How our leadership tackles the national and international challenges. A critical review of all the major legal changes made by General Musharraf and their ramifications for the country in the coming days needs to be done as early as possible. The process of political reconciliation that started after the general elections of 10th October is strongly hampered by the existence of differences amongst political parties over LFO and other laws that give more powers to the President than to the Prime Minister in a constitutional framework that in its totality does not support a presidential form of government. The efforts to convert the 1973 constitution into a suitable document for one-person-power-centered model can have disastrous results for our national integration.
According to President Musharraf, the following factors motivated changes in the Constitution made through the LFO:
- The country has suffered in the past from concentration of executive power. There was thus a need to strike a healthy balance to eliminate opportunities of misuse of power.
- Definite steps were required to remove disharmony among the provinces and create an atmosphere of trust and amity.
- Changes were required to strengthen the political institutions of the State and improving the functioning of various State organs.
- Redistribution of powers and establishment of the National Security Council (NSC) would reinforce the office of the Prime Minister. The Prime Minister would be the Chief Executive of the country, while the NSC would help him govern the country to the best of his abilities.
- The President and NSC would reinforce the Prime Minister rather than removing him after every two or three years.
- There would be checks and balances to avert any misuse of power by the Prime Minister.
General Musharraf might have all the good intentions for making constitutional changes, but he has failed to realise that such sweeping amendments in the supreme law of the country cannot be done by any individual at his sweet will. The question remains that how could he become President without following the method laid down in the Constitution for this position. If he is not a properly elected president of the country how can he strengthen the prime minister and other organs of the State?
There is no cavil about the fact that steps for good governance and political restructuring were the need of the hour during the three-year rule of Musharraf, but these could only be taken strictly within the limits of the Constitution “Things should be done according to law or should not be done at all” is a well-known maxim. We all know that there had been disastrous consequences of impulsive constitutional amendments in the past and all the so-called civil governments flagrantly violated the norms of rule of law and openly mocked the constitutional principles. Their conduct, however, could not be considered a licence for Musharraf to make amendments in the Constitution and make LFO its essential part without seeking indemnification of his actions from the elected parliament.
In the name of law and order any draconian law snatching away the fundamental rights of the citizens guaranteed in the constitution cannot be enacted. For prosecuting people in the court of law on the allegation of corruption or abuse of powers, due process of law cannot be dispensed with. Terrorist courts cannot be allowed to hold summary trial under the judgeship of military men not competent for this position. Persons cannot be held in captivity on the allegation of terrorism without any specific evidence against them or producing them before a judicial authority. It is unfortunate that despite these established principles, we have witnessed in Pakistan all kinds of attempts to enact and implement many such laws both by the military and the civil governments alike. The so-called constitutional-experts on becoming ministers or advisers to the governments of the day forget all the golden principles of rule of law and dispensation of justice. It is a matter of record, who tried to establish special terrorist court for the first time, and which civilian government came up with the brilliant idea of accountability courts outside the ambit of the existing judicial system to victimize its political opponents. Both the regimes became victims of their own systems and the military rulers took advantage of their follies by using these courts against them. This is the tragedy of our country that those who talk of the rule of law are themselves its worst violators.
Some draconian laws, potentially harmful to freedom of Press and civil liberties, were promulgated during 2002. The brief summary of such laws is as under:
- Arrest for one year without charges and recourse to courts. Following the so-called anti-terror law in USA and POTO in India, the Government amended anti-terror law on 17 November 2002 allowing the police to deprive any one of his freedom for one year without any charges and without recourse to the courts. This law was enforced within a day of the swearing in of the new parliament. The human rights bodies, members of the legal fraternity and enlightened public condemned and denounced the new law and opined that such draconian laws adopted in the name of some noble objective have always been misused against political opponents of the government.
- “Black press laws”. On 4th October 2002, the All Pakistan Newspaper Society (APNS) and the Council of Pakistan Newspaper Editors (CPNE) have unequivocally rejected the newly promulgated Defamation Ordinance, 2002 and the three other press lawsdeclaring these as “black press laws which President Musharraf’s government is attempting to impose on the country”. These two important press bodies issued a joint statement posing certain questions to the government to justify the “attempt to snatch away from the public their sacred right to know, and of their right to be fully informed of what their leaders and public servants are up to in the name of reform.”
The joint statement further points out: “The APNS and CPNE are dismayed that the present government has once again failed to honour its written commitments and agreements reached between the Ministry of Information and us on the substance and texts of the draft Press Council Ordinance (PCO), the draft Registration of Newspapers, Presses, News Agencies and Books Ordinance (RNPNO) and the draft Freedom of Information Ordinance (FIO). We strongly believe in the process of productive dialogue. But when settled matters are unilaterally overturned and agreed decisions are flouted by an ostensibly esteemed body like the Federal Cabinet, then meetings and talks become meaningless”.
All the concerned bodies, legal fraternity and public at large deplored these black ordinances that most closely resembled the draconian Press & Publications Ordinance of General Ayub Khan’s regime.
We are welcoming 2003 with the hope that democracy has finally come to stay in Pakistan. Our experience in this regard is very bitter. The people of Pakistan have been continuously betrayed by their rulers. The civil-military bureaucracy who is meant to serve people has assumed the role of rulers and exploiters, courtesy the persistent failure of political elite. The successive governments’ undemocratic and unconstitutional behaviour has forced the nation to still search for a stable system where their life and property is safeguarded, human rights are protected and basic facilities of life are guaranteed. The nation is looking for restoration of democracy in true sense, regaining of its sovereignty where foreign states cannot dictate their terms by force and where honourable citizens are not arrested/extradited on flimsy charges of supporting “terrorism” without any proof. Let us pray that 2003 brings peace, tranquility, stability, honour, dignity, self-pride and prosperity for Pakistanis.
[*] Dr. Ikramul Haq, a leading international lawyer, is a well-known author specialising in international tax, press, intellectual property, corporate and constitutional law. He studied literature, journalism and law, for his Masters and Doctorate degrees. He has written many books on various aspects of Pakistani law and global narcotics trade, some of which are co-authored with his wife, Mrs. Huzaima Bukhari.