March 20, 2008...12:59 pm
No Country for Old Men
by Yasser Hamdani
The great irony for Pakistan, as the country founded by Jinnah, who
was rightly described as one of the greatest constitutional lawyers of
the British Empire by many including former US President Bill Clinton,
himself a lawyer, is that it is still struggling to find its
constitutional heart and soul. Yet it is fitting that today that the
country’s legal fraternity is up in arms led by another great
constitutional lawyer. Aitzaz Ahsan’s great feats as a lawyer and a
politician this last year very aptly find parallels in the Jinnah of
1916 who rose to prominence that year with his defence of Tilak as
well as his contribution in bringing the Muslim League and the
Congress together on one platform in Lucknow. 92 years later,
another Muslim League has also forged a common front against tyranny –
this time with the Pakistan People’s Party thanks to the relentless
struggle and effort of Aitzaz Ahsan. Let us hope the Murree
Declaration fares better than the Lucknow Pact though.
Pitted against it today are a bunch who also claim to be big lawyers
but their expertise at times seems as hollow as Sharifuddin Pirzada’s
dubious and erroneous claims of having known Jinnah personally- claims
which were rejected by both Fatima Jinnah and K H Khurshid, the
Quaid’s personal assistant. Take for example the circular argument
put up by the new inductee in the President’s team Mr. Abdul Hafiz
Pirzada – the self styled father of Pakistani Constitution- while
speaking to GEO NEWS . He claims that a simple resolution cannot
restore the judges and that a two thirds majority is required.
Presumably this is based on the premise that Constitutional Amendment
Order of November 21, 2007 was a legal amendment and that article 270
AAA introduced through it stands valid. One can imagine how the
genius who suggested this to the president would have both shocked and
relieved him by suggesting automatic validation, affirmation and
adoption of the “competent authority’s” amendments by the incumbent
“competent authority” himself. Brilliant stuff I suppose in a world
where good old Sharifuddin is the master signifier. However in the
real world such an attempt is void ab initio. The presidential power
to remove difficulties cannot extend to an actual amendment.
Every presidential action is subject to validation, affirmation and
adoption by the elected representatives of the people. Thus the
validation, affirmation and adoption in one go on the whim of an
unelected solitary individual – let alone an illegal and
unconstitutional military ruler still in uniform at that point
wielding power through the barrel of a gun- is tantamount to a change
in the basic structure of the Constitution of Pakistan. The basic
structure of a constitution can– according to one theory- only be
changed by a constituent assembly elected forth purpose. The basic
structure of 1973 constitution is that of a federal democratic state.
Thus the exercise of validation, affirmation and adoption by one
unelected military man is in of itself a negation of that fundamental
principle of the constitution that we call “democracy”. But is it
any wonder that the other scion of Pirhood, Mr. Abdul Hafiz, the
author of Pakistani constitution, doesn’t see it this way. His
inability to understand simple issues of constitutional law was amply
on display some 34 years ago, when in a rebuttal to Zafrullah Khan’s
valid argument that it was out side the purview of the National
Assembly’s powers and responsibilities to rule on the personal faith
of an individual, PPP’s blue-eyed “sohna munda” responded by saying
that the Parliament is a sovereign body. Quite clearly the “author
of the Pakistani constitution” was oblivious of the established
principle that parliaments operating under a written constitution are
sovereign only within the four corners of that constitution and the
fundamental rights enshrined in it and that fundamental rights
override all other rights. Then, as the law minister and chief legal
(ill)-advisor to late Zulfikar Ali Bhutto, he negated the fundamental
right of a community to practise its faith freely - today he is out to
deny Pakistani people the fundamental right of representative rule.
Add to this the fact that 5 of the PCO-ed judges occupying the Supreme
Court had- as part of the last constitutional Supreme Court-
themselves ruled in their judgment of July 20th, 2007 that a Judge of
the higher judiciary may only be removed through strict compliance
with the provisions of Article 209 of the Constitution. Therefore,
the Executive authority has been effectively estopped under law of the
land from being exercised against the judiciary and the real of judges
of this country have been restrained from performing their
constitutional functions. Aitzaz Ahsan is right when he says no
resolution is required to restore the judges and that a call from the
interior minister ordering the Law enforcement agencies should suffice
to restore them to their rightful constitutional position. The judges
should then rule on the fate of the actions taken by the regime post
November 3rd. In all likelihood, the superfluous Islamabad High Court
idea, so cleverly being slipped in, will also be buried under the
weight of a constitutional judgment. The dangers of the “Islamabad
High Court” deserve an article by themselves but suffice to say, it is
nothing less than a conspiracy to deprive the citizens of Pakistan
living outside the federal capital territory their constitutional
right of writ against the federal government, housed so conveniently
within the jurisdiction of this new High Court.
One thing is certain: Musharraf is being led by his
(ill)advisors down a very narrow path to self destruction. In fact,
he no longer has any option but to resign with immediate effect. With
every passing day, his imminent ouster looks less dignified than
before. If he resigns though, he still has some chance of salvaging a
bit of his legacy and claiming that he left office when his country
was on its way to becoming a full fledge democracy. Who knows, he
might even travel the world as an elder statesman , speak at
international conferences and take lecture tours of the US like
Winston Churchill. The key is to respect the people’s mandate like
Churchill did in Britain after the war.
<i>First Published in The News on 20th March, 2008</i>
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