Posts Tagged ‘Constitution of Pakistan’

Pakistan: Supremacy of Constitution and Musharaf’s Trial

Saturday, June 28, 2008

I never been a law student, neither I happened to read “Constitution of Pakistan” nor I had any idea about what our Constitution is. This was until I heard our “populist leaders”, “ex-servicemen” and some “popular analysts” calling shots that Musharaf be trialed of high treason for abrogating the Constitution. Though I always believed and do believe in supremacy of law and also believe that a Constitution is the highest law of any state, but this made me a little curious to find out what makes a Constitution so important that a person can be trialed of high treason if he abrogates it.

Reading Constitution I find, a constitution is a codified written document that details the system of governance, establishes the rules and principles, it defines the duties, powers and procedures of a government, it also separates the power (generally) into three branches: executives, legislatives and judicial; important but not so important until I find it also guarantees the basic human rights to the people. Under the 1973 Constitution, Fundamental Rights include security of person, safeguards as to arrest and detention, prohibition of slavery and forced labor, freedom of movement, freedom of association, freedom of speech, freedom to profess religion and safeguards to religious institutions, non-discrimination in respect of access to public places and in service, preservation of language, script and culture. The judiciary enjoys full supremacy over the other organs of the State. Comparing constitution of Pakistan with constitutions of some other developed countries, I was gladly surprised to see that our constitution guarantees the same (or similar) rights to the people as constitutions of these developed countries do. And (sadly) still the fundamental human rights are widely violated in Pakistan.

Looking further, I also find that there have been 17 amendments in our constitution since it came into effect in 1973; Z.A. Bhutto (the founder of 1973 Constitution), General Zia, Nawaz Sharif and Pervez Musharaf all amended this constitution just to grab more power in their hands. They all distorted our constitution to become “democratic dictator” or to indemnify their “dictatorial actions”; none (or very few) of these amendments adds anything good for fundamental rights or for better governance.

Agreed that, as per constitution in effect now, anyone who has ever abrogated the constitution should be trialed for high treason.

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Article 6: High treason
(1) Any person who abrogates or attempts or conspires to abrogate, subverts or attempts or conspires to subvert the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason.
(2) Any person aiding or abetting the acts mentioned in clause (1) shall likewise be guilty of high treason.
(3) Parliament shall by law provide for the punishment of persons found guilty of high treason.
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As per Article 6(1) both Musharaf and Zia should be trialed for high treason.
But then by Article 6(2), judges who validated 1977 Martial Law, 1999 and 2007 Emergency should also be trialed – this includes the icon of Justice CJ Iftikhar Mohammad Chaudhary and others demanding the “rule of law”. Those Generals – who are so loud now a day and – who aided Zia and Musharaf should also be trialed; this includes so vocalist Gen. Chishti, Gen. Gulzar Kiyani, Gen. Durrani, Gen. Moin-u-din, Gen. Gul, Gen Baig and others. And how about those who were part of Zia and Musharaf’s regime and helped them to govern for years (like Nawaz Sharif, Ch. Shujahat)? Shouldn’t they also be trialed for high treason? If we want to set an example for future then all these should be trialed (not only Musharaf) under Article 6 or else it will only be“revenge” and not the accountability.

And then looking at the constitution I also find the following articles.

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Article 9: Security of Person
No person shall be deprived of life or liberty save in accordance with law.

Article 10. Safeguards as to arrest and detention.
(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before a magistrate within a period of twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the nearest magistrate, and no such person shall be detained in custody beyond the said period without the authority of a magistrate.

Article 11. Slavery, forced labour, etc. prohibited.
(1) Slavery is non-existent and forbidden and no law shall permit or facilitate its introduction into Pakistan in any form.
(2) All forms of forced labour and traffic in human beings are prohibited.
(3) No child below the age of fourteen years shall be engaged in any factory or mine or any other hazardous employment.

Article 14. Inviolability of dignity of man, etc.
(1) The dignity of man and, subject to law, the privacy of home, shall be inviolable.
(2) No person shall be subjected to torture for the purpose of extracting evidence.

Article 38. Promotion of social and economic well-being of the people
The state shall:
a) Provide basic necessities of life, such as food, clothing. housing, education and medical relief, for all such citizens, irrespective of sex, caste, creed or race, as are permanently or temporarily unable to earn their livelihood on account of infirmity, sickness or unemployment;

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I do not blame the “dictators” as they came into power unconstitutionally and nullified the constitution; for which they should be trialed. However, I am right to ask our “constitutionally elected” politicians as to what they have done to put aforementioned articles in practice.

Innocent people were being tortured in police stations, dignities of people were being humiliated, privacy of homes was being invaded, underage children were being forced to labor, individuals were being detained in police stations illegally and without being produced before a magistrate, unsheltered poor were dying with hunger; this all was happening when these “believers of constitution”, our “honorable” politicians, champions of democracy were “legally elected” and governing this country, when they were residing in “Prime Minister House”, it all was happening before Zia and Musharaf; and is still happening. Nothing, literally nothing, was done to implement any of above mentioned articles of “their” supreme constitution by any of our “beloved” politician. As the head of the government, it was responsibility of every “elected” Prime Minister to implement these articles, to make sure basic rights of people that are defined in the constitution were not being violated.

They passed 13th amendments to remove “article 58-2(b)” (president’s power to dissolve assembly) but they couldn’t replace “No child below the age of fourteen years shall be engaged in any factory or mine or any other hazardous employment” with “No child below the age of fourteen years shall be engaged in any employment”. While in power, they filled their bank accounts and multiplied their business wealth but did nothing (or very little) for “Article 38: promotion of social and economic well-being of people”. Police stations were used to force down the political rivals rather to provide security to the public.

Today’s constitution is not acceptable to these politicians and they consider Musharaf as “unconstitutional” president. They want Musharaf to be impeached and constitution to be “restored” as it on 12th October 1999 (when Musharaf took over). They want Musharaf to be impeached not because he is unconstitutional (although they say this and make us believe on this too) but only because:
1. Today’s constitution gives more power to President and not to Prime Minister.
2. PPP wants to install his own President so that it can enjoy the powers of President.
3. PML (N) (read: Nawaz Sharif) wants revenge from Musharaf and wants him to be trialed in court.

They say constitution is distorted by adding “unconstitutional” amendments therefore they don’t accept this constitution. If this constitution is amended to transfer power from President (read: Musharaf) to Prime Minister or it is restored as it was on 12th October 1999 then:
1. PPP doesn’t mind Musharaf sitting in President House with all his power clipped.
2. PML (N) (read: Nawaz Sharif) still wants revenge from Musharaf and wants him to be trialed in court.

In either case, PPP is happy to indemnify Musharaf’s unconstitutional actions on 3rd November 2007. However, PML (N) will not do this because then it cannot demand for Musharaf’s trial for abrogating Constitution; especially when his “unconstitutional” actions on 12th October 1999 have been validated by both Supreme court followed by 17th Amendment passed by previous parliament.

Having said this all, all these “principled” politicians participated in Election 2008 under same constitution that they don’t accept, they took oat under same constitution, and their Ministers took oak from same “unconstitutional” president and from governor appointed by same “unconstitutional” president. They did everything under the very same constitution that they do not accept; they followed everything put down by “unconstitutional” president as long as it was in their benefit.

Supremacy of constitution cannot be attained by rejecting only those articles that do not benefit us; it cannot be achieved by getting only one person on trial for abrogating the constitution. IF we need “Rule of Law” then we need to implement all of its Articles in its true sense, our politicians need to stop using it just to hang on the power and stop adding amendments to it only to grab more powers. And above all our leaders need to stop “exploiting” the public in the name of supremacy of constitution when they themselves don’t believe in it; they believe in only what benefit them.


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