The second part of Babar Sattar article from today’s The News
Wages of injustice
Part II
Saturday, February 28, 2009
Legal eye
Babar Sattar
The writer is a lawyer based in Islamabad. He is a Rhodes scholar and has an LL.M from Harvard Law School
President Zardari has slapped governor’s rule on Punjab in exercise of the extraordinary powers vested in him under Article 234 of the Constitution, as he is convinced that (a) a “situation has arisen in which the government in the province of Punjab cannot be carried on in accordance with the provisions of the Constitution,” and (b) “an unprecedented and unique constitutional void has been created” with the disqualification of Shahbaz Sharif. One wonders if the Constitution of Pakistan is really so deficient that it simply doesn’t envisage the eventuality of a chief minister dying, resigning, going berserk, or otherwise being disqualified when in office?
If Mr Zardari has had no role in engineering the disqualification of Shahbaz Sharif to annex Punjab, why did the Punjab governor simply not call an immediate session of the Punjab Assembly to determine which member “commands the confidence of the majority of the members” in accordance with Article 131(2A) of the Constitution?
Casual exercise of the emergency powers of the Constitution threatens to transform the federal character of our state into a unitary one, with the president running a province from the Centre. A proclamation issued by the president under Article 234 of the Constitution is meant to be for emergency purposes and automatically expires after two months, unless extended by Parliament through a resolution passed in a joint sitting. The two-month timeframe specified in the Zardari proclamation impeaches the intention behind the imposition of governor’s rule. It clarifies that Mr Zardari has no intention of taking his proclamation to the Parliament and seeking its consent, as would be expected in a democracy. The president seems to have carved out an exclusive period for intense horse-trading in the Punjab Assembly and has vested in Salmaan Taseer all state authority and means of patronage and coercion to conjure up a PPP-led government in the province.
The press release proclaiming governor’s rule included a statement from the president’s spokesman saying that the president had imposed governor’s rule “on the advice of the prime minister under Article 237 of the Constitution.” It is interesting that (a) the prime minister has no constitutional mandate to advise the president to issue a proclamation under Article 234 of the Constitution, and (b) Article 237 deals with Parliament’s power to grant indemnity under certain circumstances and has nothing whatsoever to do with the prime minister. The wording of the press release is less significant legally, but nevertheless provides an insight into the Zardari modus ope*****. It is scary that the head of our state and his advisers will not even desist from misquoting articles of the Constitution merely to counter rumours of a rift between the president and his handpicked prime minister and convey the message that Mr Gilani is party to the seemingly malfeasant exercise of constitutional powers by Mr Zardari.
The decision to conquer Punjab through abuse of the powers of the president and the federal government has been a continuing demand of the Punjab PPP. The argument has been that it will be extremely hard to win Punjab in the next elections if the PPP fails to form government this time round as the party will be subject to an anti-incumbency sentiment due to its government at the Centre. And yet it will not have had the opportunity to purchase local support through the distribution of state patronage or coerce political groups by abusing the law-enforcement infrastructure of the province. The argument flies in the face of the PML-Q’s experience in Punjab in the 2008 elections. But the PPP jiyalas are confident that so long as they have control of the judiciary, the Election Commission, the provincial bureaucracy and civilian intelligence agencies, they will be able to ensure that electoral contests in Punjab don’t end up being as even-handed as they were in February 2008.
But the timing of the decision to bring down the PML-N government in Punjab was determined by the lawyers’ long march. With the PML-N fully on board, the marchers would have received free right of passage all the way from Bahawalpur to Faizabad in Rawalpindi. With the otherwise vicious Punjab police secretly supporting the march and the military watching as a silent spectator from the sidelines, brutalising the marching lawyers, political workers and members of the civil society in Islamabad could have posed a problem for the PPP government. Not any more, though. March 2009 could now resemble March 2007 with images of police savagery flashing across the country. It is indeed incredible that the Zardari-led PPP has happily assumed the burden of Musharraf’s imprudent, illegal, unethical and unpopular decisions and has decided to enforce them with renewed vigour. The Zardari regime’s intoxication of power is accompanied by an insolent sense that it will succeed where Musharraf failed. Because it will execute his game plan better and squash public resistance to illegal, unethical and unpopular decisions more effectively.
The events of the last few days have provided a peep show into the nature of “democracy” and “rule of law” Pakistan will suffer if the Zardari-led PPP has its way. Thus, in a morbid sense, the Supreme Court decision disqualifying the Sharif brothers is welcome. It has uncannily reinforced the reasons why the rule of law movement led by the lawyers must succeed.** The Zardari-led government is forcing this country to resign itself to the fact that an autocrat can abrogate the Constitution, dismiss the judicial branch of the state and force his will into the fundamental law of the land, and there is not a thing an overwhelming population of this country opposed to such treachery can do. This country continues to be ruled under the assumption that the acts of Nov 3, 2007, were legal and changes introduced into the Constitution single-handedly by our last saviour are now an eternal part of our misfortunes. **
Further, pursuant to the Tikka Iqbal Khan case, it is now our law that an army chief can validly overthrow the Constitution and send our entire judiciary off into the sunset if he finds their decisions vexing. Can we live with such a depraved notion of rule of law that allows the ruling autocrat to trump mandatory provisions of law and force the rest of the country to reconcile with “ground realities”? Can we accept a legal system where the judicial interpretation of law and the manner in which it is applied will be informed by the identity of the litigant? Can an arrangement fall within any definition of constitutionalism wherein statutory instruments, judicial edits and executive actions are all designed to entrench the wants of the power elites and expressly deny popular consensus? Can we allow a political culture to prosper wherein whoever grabs control of the levers of state power can effectively hold the rest of the populace hostage to his or her whims?
Is the PPP leadership now kosher because its cases of graft and all other sins were washed away by the NRO (probably the most unconscionable law in Pakistan’s legal history) and the graduation precondition for seeking parliamentary membership was conveniently erased one fine morning by the Dogar Court, while the PML-N remains culpable as the Sharifs’ refused to strike dirty deals with the devil since their return to Pakistan in 2007? Are we not molesting the notion of law itself by allowing discriminatory pieces of legislation and unfair judicial edicts to define the concept of legality, thereby erasing all sensible distinctions between legitimate and illegitimate conduct? Is Pakistan a democratic polity today because its ruling regime is the tragic outcome of an electoral process, notwithstanding that such regime is neither responsive to public opinion nor amenable to the institutional checks and balances mandated by the Constitution?
Given that Mr Zardari grabbed control of the PPP and the country in a unique set of circumstances thrown up by history and has no mass backing amongst the people across Pakistan, does he not have a natural conflict of interest in allowing the processes, values and culture of democracy to prosper in the country? The adversarial process that Asif Zardari unleashed by imposing governor’s rule in Punjab on Wednesday is irreversible. And like all other adversarial processes, it can only produce victors and losers. The choice is between allowing our existing degenerate power structures to thrive or striving to introduce constitutionalism, rule of law and unmolested democracy to the country.
**This is a fight between status-quo forces that have brought Pakistan to its present sorry state and forces of change that wish to resurrect and save the soul, spirit and future of this nation. The rule-of-law movement led by lawyers, which has articulated this idea of change, is not fighting for the restitution of Iftikhar Chaudhry or the return of the Sharifs. But for the establishment of a system that neither treats Chief Justice Chaudhry and the Sharifs unfairly, nor allows them to trample upon anyone else’s rights when in public office. Our present system of governance is simply not sustainable and will need to be changed. But if the lawyers’ movement for reform fails, the only type of change that could follow would be the Taliban-style presently being endured by Swat. **
(Concluded)
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I know, as they say ye un mai se hayn jo waqt parnay pe gadhay ko bhi baap bana lete hayn