Is ‘uniformed President’ the future of Pakistan’s democracy in modern times
By Amjad Malik, MA, LLM, Solicitor-Advocate Supreme Court (England)
This basic issue which form the salient ingredients of a civil democratic system is in jeopardy and the majority is worried whether they continue to bear to see a ‘uniformed President in Pakistan’ against the wishes of the 160 million people & the letter and spirit of the Constitution of Pakistan coupled with the statements and wishes of our beloved Quaid, the founder of Pakistan Mohammad Ali Jinnah. It is good that he is not alive to see all this happenings and what the leaders have done to Pakistan and to the dream he saw for all of us. That is the true & important issue which is clouding the whole system of civil democracy in Pakistan. The insistence of President General Musharaf to retain his uniform is adding insult to injury when he retained his 2nd cap post 31 December 2004 in violation of his agreement with MMA via PML(Q) as per Mr. S M Zafar’s book ‘Dialogue on the Political Chess Board’ and in contravention to article 63(1)d of the Constitution of Pakistan 1973 (as amended).Article 63(1) d says as following: 63 (1) A persona shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora [Parliament], if –
63(1) (d) “he holds an office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder; or”
There has been several news reports where President assured of taking his uniform off as per agreement but he did not keep his promise whether it was ‘in the supreme national interest’ or ‘his personal interest’ due to which lawyer community has found unease upon this kind of unconstitutional and irrational decision making which has kept Pakistan derailed from real civilian rule so far and that may not be the intentions of SC in Zafar Ali Shah case when SC gave Gen Musharaf 3 years to hold elections post military coup on 12 October 1999.
Independent and fair elections are impossible if President of the nation who defiantly violates the constitution and is addressing only one party functions one time at Lahore at ‘Minar e Pakistan’ delivering political speeches to teach lessons to opposition leaders and other times in other parts of the country. As the elections are nearer, it is very difficult not to take them as ‘political processions’ in the run up to election thus making him partisan and one sided President linked with the aspirations of PML(Q) his own brand of political party which was assembled after coup to counter PML(N) alone and his own allies and leaders loudly and clearly asked him to remain in Uniform as well as being a President. This tendency of lack of respect of the rule of law, unconstitutional mannerism undermine the effective role of judiciary.
History tells us that Generals translate, exploit and manipulate the voice of silent majority who remain uninvolved in political business and politics on day to day basis and takes over the governance of a country on the name of holding fair elections, ridding corruption and providing basic needs to common man. In this current case that ‘silent majority’ is our broken middle class who supports helplessly every one who aspire to bring economic change, social justice and is a reformer in nature and they always fall a prey to this illusionary slogan. They fell for ‘Rooti, Kapra aur Makaan’ and also fell for General Zia’s ‘Islamisation and fair election & true democracy’ slogans. Nation needs to sweep that carpet under the General and military rulers and give rule of law and respect for the law of the land to this society to secure their own right by learning from India and Bangladesh who has strengthened their democratic forces as compared with us. By allowing a usurper to stand defiant and keep on rolling our political system with a twitch of his fingers is a blatant disregard to the Constitutional provisions where nation feel that the Parliament never intended that. The founder of the nation Mohammed Ali Jinnah never aspired when he fought for Muslims of sub continent to secure an independent homeland, that it will be ruled by Generals, in fact, he whilst addressing at Staff College in 1948 which was his only address to armed forces advised them to learn their oath with Pakistan fully and understand its commitments and obligation. Mr. Jinnah was so apt and keen to keep army Officers in their limits that he even put a mark against the promotion of one too ambitious and corrupt General to a senior level who later took over and held martial law after the death of our Quaid. That military dictator even said the opposite to the norm, ‘that we can not trust and leave important decision to civilians.’ Nation suffered for not following the directions of our Quaid..
I think time has come that before any so called ‘Act of Parliament’ is presented yet again and or a supra constitution mechanism is adopted like referendum to request the military dictator to retain his status in violation of the constitution’s true intentions thus allowing a General to hold his own office of profit as ‘Chief of Army Staff’ as well as the office of ‘President of Pakistan’ thus depriving the national parties to elect their own civilian President, Supreme Court must put it aright what they initially directed as the time is ripe in the following lines:
· That 3 years were given by the SC to bring true civilian rule in Pakistan by holding fair election(s), shedding uniform and appointing new COAS and to allow the system to run under Constitution of Pakistan 1973 and that period has expired and President is asked to choose one between his two roles before the deadline given;
· Alternately, Declaration that his tenure came to an end on 31 December 2004 as COAS as he promised publicly and was agreed between the opposition parties as well as ruling coalition on an understanding upon which controversial constitutional package was approved by Parliament ‘17th amendment.’ Article 63 came into effect after the deadline agreed between Parliamentarians and unless constitution is amended with 2/3 majority to that effect, it is not possible for the President to retain his uniform which in any event will be against the spirit of the Constitution itself.
17th Amendment brought back most of the ‘8th amendments’ changes which were originally introduced by former military dictator and were repealed by the Civilian Prime Minister unanimously. Lawyers feel that current Parliament and parties did not have any mandate to support a uniformed President as no party expressed in their manifesto that those 2 things (Uniform & LFO) will be decided against the constitutional norms and that they will vote in favour, therefore 17th amendment as well as an Act of Parliament to allow a General to remain in Uniform in contravention to Constitutional provision of art 63(1)d is ultra vires as it allows unlawful action.
In these circumstances , only fair, faster and firmer justice and free elections under a neutral care taker set up and independent Election Commissioner can ensure that no one dares to breach the core essence of Pakistan’s constitution in future. We need a strong Parliamentary system where all departments gain their integrity and strength in order to save this democratic system and lawyers feel that couple of ‘sham convictions’ like in the case of Javed Hshmi as well as Syed Yousaf Raza Gilani and many other political prisoner who are being victimized for toeing the line of their conscience, it can not deter political activists and leaders to save their country from yet an other disaster. Federation and future of Pakistan lies with democracy which is not possible unless and until free elections are held under independent care taker set up where Election Commissioner is neutral and independent and judiciary needs to play its role.
This intervention of SC & its ruling if not given in time will lead to further dictatorial manipulation to secure one man’s seat on top regardless of the wishes of 160 million Pakistanis which is already suppressed and it will breed hatred, contempt and injustice, which the honourable Supreme Court can avoid.
Amjad Malik is a life member of SCBA & a Solicitor-Advocate of the Supreme Court of England and Wales, member of English Law Society’s Immigration Law committee and Legal Advisor of PML(N).
Sharif’s exile of 6 years - By: Amjad Malik, MA, LLAM
Sharif’s completed their 6th year of exile on 9 December 2006 and they are currently continuing their struggle for military free real democracy in Pakistan. Pakistan since the formation of 1973 constitution has seen 2 military Coup’s and none have delivered anything to Pakistani people and in fact, dictators left leaving behind ruins but never admitted their mistakes. In 1971 during Yahya’s reign we lost East Pakistan and Bangladesh emerged due to ruler’s unfair policy of not sharing power with them. We did not learn any lesson and ‘Hamood Ur Rehman’ commission report was hidden for decades. In General Zia’s regime we lost ‘Siachen’ and acted as hired guns against Russian aggression and same continued when we were playing on the flute of our masters becoming party to killing of thousands of Muslims in Afghanistan on the name of so called ‘war on terror’. Neither brave General Musharaf’s ‘Kargil’ mystery is resolved nor he could conquer ‘Dehli’ in his 7 years unlawful rule. General Musharraf came to power to bring about true democracy and rule of law. His 7 points agenda is all in tatters and his good governance is sacrificed on the alter of scandalous government which has land mafia, sugar and cement crisis, oil price hike, steel mill reference, stock exchange crash, Nabbed’ ministers and incidents of ‘Bajaur’s medal on their collar with hundreds of unfinished achievements of which each one of them is worthy of shame. A common man fears that if permitted these rulers will not hesitate to sell Mangla Dam for a potential housing scheme as they are on ‘hit and run’ policy because their political days are numbered and only true Parliamentary democracy is the future of Pakistan.
Musharaf bitterly failed in achieving what he himself offered to nation. Kashmir is still in turmoil, Qadeer Khan is made an escape goat, industry is ruined and investor is scared, Provincial harmony slogan has witnessed ‘Akbar Bugti’s killing, and services has not reached to lower level but individual has and this devolution is weakening the cause. In order to continue his unlawful rule, judiciary is weakened further and Chief Justice Mr. Siddiqui was made to go home without reason and oath under PCO hit the nail aright and judiciary lost its teeth thus his claim of cheaper justice at the door step of common man was gone out of the window, now it is the face saving exercise. On the name of enlightened moderation, a youth is given an illusionary direction where Indian culture is already all over on us and the results are disastrous, a common man is in a fix his dream of having a respectable living in a just and democratic society is still far from reality. General sahib promised to shed his uniform by 31 December 2004 which was not kept as well as he continued his rule by becoming President himself. His NAB did not touch the one who took refuge under his wings however, opponents were grilled as state enemy.
His claim to have earned millions for taking part in War and handing over culprits to US is open for challenge when Pakistan’s deficit is growing faster and difference is amounting to 10 billion. SC decisions are mocked and common man is committing suicide as there is no self respect and no respectable living, we are victim of brain drain as all middle class top students are attracted for H1 visas or HSMP migration to US, Canada and Europe and working hard to reform foreign countries. Now this is the horrid picture of Pakistan painted by current rulers where transparency has graded us on 142 number in corruption and we are in top 30 corrupt countries and the level is over 60% higher than any political government in the past 35 years. Women Protection Bill has added insult to the injuries of the nation where an unjust and untimely discussion is initiated which has no relation to the common man’s problems of rule of law, health, justice, education and reforms in all sectors. This government rather than taking the blasphemous cartoon issue to European Court has given flame to the West to ignite that we are intolerant and extremist if we protest. Hadood Ullah is touched by one man without involving ‘Islamic Ideology Council’ and at a time when war is at our doors, economy is going down, corruption is ripe and democracy is far far away and as Be Nazir Bhutto said that no contingency after General Musharaf as as ‘Musharaf is an endangered species’ in those circumstances only fair, faster and firmer justice and free elections can ensure that no one dares to breach the core essence of Pakistan’s constitution. We need a strong system not couple of ‘sham convictions’ to deter political activists and leaders to save our country from destruction. Federation and future of Pakistan lies with democracy which is not possible unless and until free elections are held under independent care taker set up and judiciary needs to play its role.
Turning to Sharif’s Mian Shahbaz Sharif President Pakistan Muslim League (N) former CM Punjab and was deported from Lahore Airport to Jeddah on Monday 11, May 2004 when he attempted to return to his homeland. This was another political twist which Pakistanis were shocked to see how such an unconstitutional and ultra virus action could be allowed. Mian Nawaz Sharif and his family imprisoned under charges which were politically motivated after his ouster by Military , while the old and the young of his family were put under house arrest for months. As a result of military action, Pakistan was suspended from the Commonwealth. On the 9th of December 2000, Prime Minister Nawaz Sharif along with his family was exiled to Saudi Arabia. Mian Shahbaz Sharif current President of the Pakistan Muslim League (N) resisted the extreme emotional blackmail and refused to leave his prison cell in Landhi jail in Karachi. Despite his resistance, he was forced to board the aircraft by the brutal force of the military authority. During his stay in Saudi Arabia he developed a serious ailment in January 2003 for which he had to urgently travel to the United States where he underwent a surgery in New York. On 11th May, when as a result of Supreme Court observation in his two petitions to the Supreme Court, the Court ruled that every citizen has a right to enter and remain in the country of his origin and there can not be any restriction put on his entry. On paragraph 15 of the Judgment of SC in Const Petition Number: 55/2003 said that govt. neither deny his right to enter and remain nor brought on record any agreement / document permitting the government to force the petitioner to live in exile. The Para says as following: “15.It is significant to note that neither in the comments nor during the course of arguments the Federal Government/ Government of Punjab has disputed the right of the petitioner being a citizen of Pakistan to come back to the country nor referred nor brought on record any agreement/document permitting the government to force the petitioner to live in exile. On paragraph 28 C confirmed that AG did not dispute the article 15 rights of the petitioner: “28.It is not denied by learned Attorney General for Pakistan and Advocate General Punjab nor so could be denied that Article 15 of the Constitution bestows a right on every citizen of Pakistan to enter or move freely throughout the country and to reside and settle in any part thereof. It is a settled proposition of law that the right to enter in the country cannot be denied but a citizen can be restrained from going out of the country. The petitioner is a citizen of Pakistan and has a constitutional right to enter and remain in the country. 29 (2) For reasons to be recorded later on, both these petition are dismissed with an observation that the petitioner may come back from abroad subject to the law of the country.” Mian Shahbaz Sharif’s family returned to Pakistan to attend their daughter’s wedding but unfortunately, on 1st July 2003 under an illegal order of the military government, his wife and daughters were hunted down and arrested without any charge in the most cruel and humiliating manner and made to forcibly board a plane to Jeddah. Mian Shehbaz Sharif tried to go back to his country but was forcibly deported back to Jeddah from Lahore despite his willingness to appear before court of law as was said in SC’s observation in his petition No. 55/2003. Sharif never followed it up in courts for specific relief and or for contempt after his deportation as he learnt the state of play that justice will be denied by the current rulers to him, but Political circles, intelligencia and lawyer community asked on numerous occasion that it was the duty of court when State failed to produce any evidence, did not disagree petitioner’s right to enter Pakistan, therefore his removal from Lahore to Jeddah was an act of contempt as well as was in defiance of Supreme Court observation. Court must look into this matter as once the observation is given, any action otherwise makes it questionable and sub judice and needs to be looked by the Supreme Court for complete scrutiny evaluating all statements which were given after deportation as if the Govt of day has won a war. This was confirmed by General Musharaf ‘In the line of fire’ published in the end September 2006. On page 166 first paragraph on sixth sentence, it reads as following, “It must be said that Shahbaz Sharif initially refused to sign and did not want to leave Pakistan. But we could not have this partial acceptance.” General Musharaf however reiterated in December 2006 once again when he was interviewed by an Indian Journalist that if any one out of the exiled 2 leaders attempt to enter Pakistan to take part in election, first of all they will not be allowed, and secondly one of them will go to Saudi Arabia and the other to jail. Nation asks where does the court fit in when he himself is judge and jury to decide who should be the Chief Executive of the country negating the will of people and denying their right to choose. That one sentence not only supports all previous statements and apprehensions of Sharifs & strengthen their case that courts must take suo moto action for the safe return of the exiled leaders. Mian Shehbaz Sharif’s deportation & defiance of General Musharf after failure to deliver his so called ‘7 points agenda’ to keep Sharif’s & Mohtarma away from Pakistan proves the following:- The government does not care for rule of law and they found him guilty without trial of unknown charges and deported him under a contract which is unknown and unseen and no access to court was provided;
- The government did not respect the Supreme Court observation that no restriction can be put on citizens on their entry and every citizen has inborn right to enter and remain in their country of birth; the deportation of Mr. Sharif thus amounts to contempt of court. Accordingly under the rules of natural justice, he should have been allowed to wait till his petitions were decided.
- Most important of all, current regime does not wish to see any opposition leader carrying a political profile like Nawaz Sharif, Shehbaz or even Kalsoom Nawaz and Be Nazir Bhutto outside on the streets telling the masses what is going on in the country. That is a clear example of weakness on part of the Nabbed government.
‘Women Protection Bill is a ‘ good for nothing’ exercise at a wrong time and is An eye wash By: Amjad Malik, MA, LLM
Recent passing of the Women Protection Bill from the lower house of the Parliament has started a new debate in Pakistan. This bill which has given message of good days to come for women as well as has sparked an Islamic and non Islamic debate on the contents quite to the contrary to what the reality is. We have not yet forgotten the effect of Danish cartoons and here come an other jolt in the form of criticism right to the top on our ‘Hadood laws’ which is untimely, un thoughtful and very callous and above all it does not take into account Muslim sensitivities at this crucial time within which we are going through when the war is at our door front.
WPB seems a tester to initiate a debate that ‘Hadood Laws’ and punishments are ‘nauzbillah’ unworkable and it will lead to a bigger debate on issues like, Drinking Alcohol, Saudi Laws, Pardah, arrange marriages, and above all blasphemy laws versus freedom of expression and Super powers & think tanks will be finding an excuse to either declare states non tolerant if public protests in the country on these irrelevant issues or finding an excuse to attack them considering them a category of state and people who wishes to bring Islamic revolution and are a threat to world peace, both situations are fatal for Muslims and in particular Pakistanis.
This is truly starting a dividing line and Alas we are not united as one nation as well as not mindful of the gravity of the situation. No civilian rule promote fundamentalism and or terrorism but it is insane to bring terrorism at our door step either. Pakistan can never be Turkey or Egypt as envisaged by our so called, self imposed rulers and these efforts will weaken the moderate and middle class Muslims further which will have dangerous repercussions. Pakistan as an ideological state is a thorn in the eyes of West and we all must protect this from all dangers and sooner the better. I am still of the view as have advocated for years that, ‘Rule of law’ has its own price and at this moment Pakistan desperately needs a ruler who can make rule of law a distinctive feature of his governance and initiate a ruthless department building process as well as accountability which include along with others ‘judiciary’ and ‘military’ as ‘all citizens are equal in the eyes of law’ and he at least intends to eradicate all the evils in civil society and brings a reform package for the dying middle class and poorer and ensure justice at the door step of common man. Justice delayed is justice denied and Justice should be seen to be done at least in an Islamic Society, in Pakistan we are 50 years behind in giving justice to nation and have learnt nothing from our past and are not ashamed of our glorious heritage. Only fair, faster and firmer justice can ensure that no one dares to breach the core essence of Pakistan’s constitution & brings insecurity to its national assets if we are strong inside (law an order) and economically viable (strong economy). We need a strong system and reliance of that system and continuity where no institution start waiting for its term but institution start acting to protect the system of Parliamentary Democracy. Pakistani common man still is ready for sacrifice and can live in poverty, restlessness, without food, hygiene or modern facilities but they can not live in an unjust society where might is right is applied as a principle and incident like Bajaur happens on a whole scale where 80 people dies and no one knows who killed them. Unless people get their basic rights as per right, democracy can not flourish in Pakistan, as we desperately need a social reform package if we are to survive as nation, otherwise we will be brought down and limited to a multi national companies & mafia interest sometimes land mafia and other times stock exchange mafia. True problem in Pakistan is rule of law, education, social reforms and justice. Time is ripe that Judiciary gets its teeth out and do justice with common man. WPB is one of the tricks of juggler and these tricks are to deviate nations attention of what could not be delivered and to give them a dream unattainable. Women needs education and empowerment, very rarely ever, a rape case was decided in completeness under ‘Hadood laws’ in Pakistan, simply because, the basic requirement of 4 witness wasn't met, therefore, courts almost in all such cases punished rapist under Criminal Procedure Code of Pakistan, the other venomous propaganda that victim of rape (women) gets into trouble at the hands of police because of influence and money used by big people, have some truth in it, but this highhandedness one observes in every walk of life in Pakistan and you name it and it is there. So in short, the answer to this lies in reforming police powers by completely doing away with their ingrained practice of misusing powers in return for money and not making drastic changes in the law itself. Ideally, police can be barred from imprisoning any women until court decision and there must be presumption in favour of release of women out of custody on bail on conditions with or without sureties and in rare circumstances they are detained. They must only be imprisoned after having been sentenced. I feel this is an illusion an all eye wash, if the current ruler(s) were ever serious they wouldn't have waited for 7 years to bring this only change to please their master. I will only quote one sentence from Charles Cannedy’s book, ‘The Status of women in Pakistan in Islamization at P.74, where he says , “women fearing conviction under section 10(2) frequently bring charges of rape under 10(3) against their alleged partners. The FSC finding no circumstantial evidence to support the latter charge, convict the male accused under section 10(2)—the women is exonerated for any wrong doing due to reasonable doubt rule” The current ratio of convictions tell the whole story as to how many women have been sentenced under ‘Hadood laws’, its police powers which needs to be bridled not to change laws on the whole scale basis thus wasting nation’s time and money. Its time that we get down to true business which is taking off the uniform and hold free, fair and impartial elections under judiciary. Nation is sick of mockery and false pretences to extend unlawful regimes and can not be made fool any longer.Amjad Malik is a Solicitor-Advocate of Supreme Court of England and Wales and Legal Advisor PML(N)
