Tuesday, May 26, 2009

One man's law

Dr. Umar Khan
Dr. Khan heads a Lahore based Think Tank.

One man’s law

Seven-member bench of the Supreme Court, accepting a joint petition filed by JUI-F members Mohammad Nasir Mehmood and Shameer Ahmed scrapped the graduation condition for the legislators imposed by Gen Musharraf. After two days of hearing the court declared the law to be void prospectively on account of being inconsistent with articles 17 (freedom of association) and 25 (equality of citizen) of the constitution. This decision has been welcomed on merit but is being treated suspiciously due to its timing, raising questions about its real intent.

In 2002, through Article 8(A) of the Chief Executive Order No 17, Section 99 (1)(CC) was inserted into the Representation of Peoples Act 1976, requiring a contesting candidate to be at least a graduate in any discipline or holder of a degree recognized by the Higher Education Commission. This law was challenged in the court of law and in July 11, 2002, a five-member bench of the Supreme Court had upheld the graduation condition for legislators on a petition moved by the PML-Q. Now interestingly everything happened quick and fast, as it should always happen for those seeking justice. The case was decided in 2 days clearing way for some and raising many eyebrows in the process.
In this historic case of far reaching effects, many interesting things happened which were unheard of until recently. To begin with, the top law enforcement officials, the attorney general and his assistant, direct appointees of General Musharraf, didn’t defend the contested law. Despite the fact that their benefactor had enacted this law single-handedly, they criticized it asking the court to repeal it. Advocate Raja Niaz Rathore, counsel for the federal government, requested the court to strike down the graduation condition for being a “bad law”. Attorney General Malik Mohammad Qayyum described the graduation condition as a “one man law” made in negation of democracy and political justice.

Our AG, appointed by a General but retained by the elected government, holds the dubious distinction of being officially criticized by the highest court of law forcing him to resign disgracefully. Still, despite many reservations even his worst critics find disagreeing with his statement very difficult. It was certainly a bad law and the one made by a single person. It is only in Pakistan that certain people claiming to be wiser than the whole nation impose constitutions and laws based basically on their whims. This didn’t happen for the first time and if past is any indicator of the future, it wont be the last time either.

Basically what the court said was that great injustice was done to the nation by one man handing out laws as it used to happen during the dark ages of history. Rights of Pakistanis were denied and constitution desecrated by people entrusted with force to protect the country. This is a very serious situation and must not be taken lightly because such previous attempts have had lasting detrimental effects on the country and the society.

Before enumerating its effects, recalling our tragic history might be useful. Gen Ayub Khan was the first person to consider himself wiser than the entire nation and became a one-man lawmaker giving a unilateral constitution. This constitution ended up exactly how it should have, and Gen Yahya abrogated it. Yahya tried his level best to give a constitution but could not due to different reasons. Gen Zia also gave a new constitution but by that time the dictators had learnt subtlety and had started calling it amendments to the 1973 constitution. Later he thrust his amendments down the throat of the nation by threatening not to lift the martial law. This kind of passing of amendments basically is coercion of the worst kind but unfortunately it seems to have become a routine as Gen. Musharraf also followed Gen Zia and gave a new constitution in 2002. The graduation law was a part of it and enacted for some immediate conveniences of the dictator.

All these were bad enough and the nation had resigned to tolerate, rather bear them as an unfortunate fate accompli. Unfortunately Gen Musharraf didn’t stop here and unilaterally changed the constitution for the second time jailing the entire non-compliant judiciary in the process. The nation is still trying to deal with the complications and problems created on that fateful night of 3rd November.

These one-man constitutions and amendments have harmed Pakistan a lot. It damaged the basic fabric of our society resulting in breakage of the country in 1971 after a humiliating military defeat. Later it forced Pakistan into foreign wars leaving the nation with crime, violence, drugs, extremism, poverty, illiteracy etc. The internal cohesion, law and order, stability have been ruined which the civil government is trying hard to reenact. It has been so detrimental that Pakistan has been on the brink of being declared a failed state for many years. A failed state of highly talented 160 million nuclear armed people. A scary scenario for the world.

Even internationally the practice of one-man laws damaged the reputation of Pakistan. We became a laughing stock; as such amendments to the constitution are unheard of and absolutely unacceptable everywhere in the world. The big powers fully realizing the vulnerability of such strongmen, lent them support and used the nation ruthlessly at a dirt cheap price for their interests directly conflicting with ours. The ultimate sufferer in all these circumstances was Pakistan and its 160 million inhabitants.

The dictators are certainly responsible for these problems but they are not the only ones to be blamed. We as a nation failed to protect our sovereignty from our local threats and the dictators were never short of collaborators. We never punished any dictator or its collaborators usually on some nice sounding but wrong pretext. At times we fooled ourselves calling it reconciliation and at other times something else but probably we were simply scared as a nation of the dictators and their collaborators.

Punishments are not for revenge but they are useful as a deterrent. We must start punishing those who cause harm to the country and its people and end the impunity they have enjoyed. We must protect our country and its constitution from the external and internal enemies. Forgiveness bordering on accomplice must be stopped. We must not let the people guilty of usurping the rights of the nation get away easily without paying a price for their misadventures. This would help discourage the future usurpers saving the country from embarrassments and tragedies we might encounter if we fail to protect ourselves and our constitution.

Another set of one-man made laws made on the 3rd of November await us. They are already causing serious problems and cleavages in our society. It is the testing time for the nation and the guidance might have come from the court that has taken oath on the PCO. It has ordered us not to comply with the one-man made laws and discard them. Probably the court in its own wisdom has sent a very clear message to the nation reading; don’t accept or sanctify the one man made laws of 3rd November. The court has done its duty now it’s up to the nation to show its resolve. It is time to rise to the occasion

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