Traitors: Theirs and Ours

Rising intolerance in India is no secret. Lynchings of Muslims by Hindu extremists have made international headlines, and the world has taken notice of Modi’s unwillingness to show sensitivity to his country’s minorities. So when Amir Khan said that he too felt alarmed by the growing incidents and even his wife had asked if they should move, it should have come as no surprise. However, the reaction – both here and in India – tells a lot.

In India, Amir Khan has been termed a traitor by right-wing hyper-nationalists, with even Shah Rukh Khan thrown in for good measure. In Pakistan, however, Amir Khan is being treated at a martyr who is being persecuted for doing nothing but telling the truth. This is the correct response, and it should also come as no surprise except when we remember how we treat our own Amir Khans.

The list is a long one: Asma Jahangir, Pervez Hoodbhoy, Marvi Sirmed, Hamid Mir, Husain Haqqani, Raza Rumi, Mama Qadeer…the list goes on and one. Anyone who dares to stand up for Ahmadis, question Army’s actions in Balochistan or support for jihadi groups like Jamaat-ud-Dawa, or apologises for treatment of Bengalis before 1971 is branded as a traitor and threatened with their lives. Are we hypocrites? Or can we not see that we are acting exactly like the Hindu extremists we claim to be against?

 

Devil’s Advocates

broken scales of justiceI lost count of how many times someone emailed me a link to a news report about Sharifuddin Pirzada, the lawyer who is leading Gen Musharraf’s defence team. The report was originally written by AFP, a French media group, but  it has spread like fire since, appearing in countless newspapers both in Pakistan and internationally. The explanation that Pirzada is ‘just doing his job’ is perfectly valid – that is not my issue. My issue is why this explanation is only given for lawyers who defend dictators?

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Treason? Under what Constitution?

Asma Jahangir’s resignation as Husain Haqqani’s lawyer in the memo case surprised quite a few people. She had originally taken the case as a matter of principle based in her experience as a respected human rights lawyer. She reviewed the facts of the case, looked at the way it was proceeding, and immediately became concerned about the precedent that was being set. From the beginning until the end, she said her concern was not specific to her client but to the greater principles of constitutional law. Ironically, what has not been discussed much in the endless analysis of the memo case are not the facts – who was involved, who knew what and when did they know it – but the principles of the case.

Please allow me to clear up one apparent misconception about this case: There has been no proven evidence of anyone’s involvement except for three people, all Americans: Mansoor Ijaz, Gen Jim Jones and Adm Mike Mullen. That is supposedly why the Supreme Court has set up a commission – to investigate for evidence. If the evidence was already proven, there would not be need for an inquiry commission, would there? But let us assume for the sake of this post that some genie will present to the court fool proof evidence that someone from the federal government was involved in the memo. Many people are suggesting that it constitutes treason under Article 6. Is this true?

According to Article 6 of the Constitution of Pakistan, “Any person who abrogates or subverts or suspends or holds in abeyance, or attempts or conspires to abrogate or subvert or suspend or hold in abeyance, the Constitution by use of force or show of force or by any other unconstitutional means shall be guilty of high treason.”

So we must ask which Article of the Constitution could have been ‘abrogated or subverted or suspended or held in abeyance’. The common answer is that the memo sought to put the nation’s national security under a foreign power. This is a serious charge, and as such we should take a moment to consider the facts.

Without defending what was in the memo, let’s consider what it said. It said President of Pakistan will order an independent inquiry into the allegations that Pakistan harbored and offered assistance to Osama bin Laden, that the findings would be made public, and that any officers or officials discovered to have helped Osama bin Laden would be fired.

Next, it said that the federal government will implement a policy of either handing over those left in the leadership of Al Qaeda or other affiliated terrorist groups who are still on Pakistani soil, or allow US military forces to capture or kill them.

As far as nuclear weapons, the memo said that the federal government would reinstate the policy originated under the Musharraf regime to bring Pakistan’s nuclear assets under a more verifiable, transparent regime.

Finally, the memo said that the government would eliminate a section of ISI that maintains links with jihadi militant groups and hand over anyone responsible for 26/11 to the government of India.

Now, anyone might agree or disagree with any one or even all of these items as matters of policy. But there is one undeniable fact – each and every one of them falls under the Constitutional powers of the federal government.

Article 142(a) grants that [Majlis-e-Shoora (Parliament)] shall have exclusive power to make laws with respect to any matter in the Federal Legislative List.

The Federal Legislative List is found in Fourth Schedule. Part I, Number 1 gives parliament the sole power to make laws with respect to any matter of

“The defence of the Federation or any part thereof in peace or war; the military, naval and air forces of the Federation and any other armed forces raised or maintained by the Federation; any armed forces which are not forces of the Federation but are attached to or operating with any of the Armed Forces of the Federation including civil armed forces; Federal Intelligence Bureau; preventive detention for reasons of State connected with defence, external affairs, or the security of Pakistan or any part thereof; person subjected to such detention; industries declared by Federal law to be necessary for the purpose of defence or for the prosecution of war.”

Part I, Number 57 gives parliament the sole power to make laws with respect to any matter of “Inquiries and statistics for the purposes of any of the matters in this Part”.

Therefore, the federal government has the authority to order an independent inquiry into the allegations that Pakistan harbored and offered assistance to Osama bin Laden.

Article 243 says, “The Federal Government shall have control and command of the Armed Forces”.

Therefore, the federal government has the authority to remove officers and officials that helped Osama bin Laden.

Article 243 further says, “Without prejudice to the generality of the foregoing provision, the Supreme Command of the Armed Forces shall vest in the President”, and Article 245 says, “The validity of any direction issued by the Federal Government under clause (1) shall not be called in question in any court”.

Therefore, the federal government has the authority to order the military to hand over those left in the leadership of Al Qaeda or other affiliated terrorist groups who are still on Pakistani soil. And the Supreme Court has no authority to question this.

But wait, what about allowing American forces to carry out operations on Pakistani soil to capture or kill terrorists? Isn’t that subverting our sovereignty? Not according to the Constitution.

Remember the very first item in the Fourth Schedule? It gives the federal government full authority to allow “any armed forces which are not forces of the Federation but are attached to or operating with any of the Armed Forces of the Federation including civil armed forces”. Additionally, the Federal Legislative List is found in Fourth Schedule. Part I Number 3 gives parliament the sole power to make laws with respect to any matter of “External affairs; the implementing of treaties and agreements, including educational and cultural pacts and agreements, with other countries; extradition, including the surrender of criminals and accused persons to Governments outside Pakistan.”

What about nukes? The memo says that the federal government will would reinstate the policy originated under the Musharraf regime to bring Pakistan’s nuclear assets under a more verifiable, transparent regime. Nuclear weapons are under the command of the military, though, right?

Wrong. Nuclear weapons are under control of the National Command Authority. In 2009, parliament passed the National Command Authority Bill, further establishing civilian command over the nuclear assets and putting them under control of the Prime Minister.

Therefore, the federal government has the authority to reinstate the policy originated under the Musharraf regime to bring Pakistan’s nuclear assets under a more verifiable, transparent regime.

What about eliminating sections of the ISI, or handing over 26/11 terrorists to India? This authority also rests with the federal government under the Fourth Schedule, Part I, Number 1.

We should ask ourselves whether the national institutions are following the Constitution. Let us stop lying to ourselves, shall we? The Supreme Court has just abandoned the Constitution of Pakistan. The principles of law and justice have been distorted, and more and more it appears that the outcome has already been determined, and the process is simply going through motions.

Asma Jahangir saw this all too clearly. If this was a legitimate legal process, she asked, how could the Court issue an order when the accused had no representation and had not been given the right to speak? How can his lawyer be warned by the Chief Justice not to question the statements of military generals? Speaking to reporters at the Supreme Court building, she declared that the judiciary has effectively put civilian authority under the military. In other words, the Constitution has been turned on its head.

You and I may not like what was in the memo, but there can be no doubt that the federal government would have the constitutional authority to do any of it. It might be bad policy. It might be politically stupid. But the fact remains that the federal government has the authority to do all of it. You and I may not like that fact, but it is a fact even so. And if we want to change that fact, we have to change the constitution. Otherwise, punishing the federal government for something that was within its constitutional authority, no matter how stupid, is an attempt to abrogate or subvert or suspend or hold in abeyance the Constitution of Pakistan. And that actually is treason under Article 6.

Just a gentle reminder to my dear readers: Before some clever soul tries to say that I am suggesting the government had anything to do with the memo, or that I approve the memo contents, or anything else that is not stated in this post – I am not. This is purely a hypothetical examination of the Constitution as it actually reads and not as TV anchors and political operatives try to pretend it does.

Pakistan’s Latest Political Trial

Pakistan’s security establishment has a history of using politically motivated trials to get rid of inconvenient civilian governments. Most famously, Gen. Zia-ul-Haq’s 1977 coup was finalised when a military court sentenced Prime Minister Zulfiqar Ali Bhutto to death following what international officials dismissed as a mock trial fought in a Kangaroo court. Troublingly, there are reasons to worry that Pakistan may be witnessing another political trial against a democratically elected civilian government.

This latest chapter began with American businessman Mansoor Ijaz’s claim that Pakistan’s Ambassador to the United States, acting on the direction of the country’s president, sought American support for replacing Pakistan’s military leadership in order to prevent a possible coup. Mr. Ijaz, whose bizarre claims have been strongly questioned by the international media, has found himself an unlikely celebrity in Pakistan where his years of accusing Pakistan’s military and intelligence agencies of facilitating international terrorism have been largely ignored in favour of his allegations against democratically elected civilian officials.

Despite serious questions about the accuser’s credibility, a media circus erupted over the issue. The first casualty of Ijaz’s allegations was Pakistan’s Ambassador to the United States, Husain Haqqani, who was driven to resign despite an absence of formal evidence suggesting his involvement. At the time of this writing, Pakistan is still operating without a permanent Ambassador to the world’s most powerful nation.

In response to the media uproar, Prime Minister Gilani announced a parliamentary commission to investigate the issue, only to have the rug pulled out from under him by the judiciary when the Chief Justice accepted a petition by opposition leader Nawaz Sharif and announced that the Supreme Court would hold its own investigation, further ordering the country’s civilian and military officials to respond within 15 days.

Asad Jamal, a Lahore-based advocate of the high court, reviewed the Supreme Court’s justification for taking up the issue and found the decision completely outside the constitutional jurisdiction of the court.

The irony of Nawaz Sharif presenting the petition before the court was not lost on Pakistanis as Mr Sharif himself has been convicted by multiple courts on charges ranging from corruption to highjacking and terrorism. The cases were well known to be politically motivated, and many of the convictions were later overturned citing lack of evidence.

Perhaps the most ironic thing about Nawaz Sharif’s latest legal gambit is that not only has the former Prime Minister himself been the subject of judicial persecution, but he has even been accused of the same charges that he is now petitioning the court to investigate.

According to Shaheen Sehbai, an editor at The News (Pakistan’s largest English-language newspaper) reported in 1998 that Nawaz Sharif and his emissaries held secret meetings with U.S. government officials during which they asked the Americans for support in changing the military leadership who they suspected of plotting a coup. In return, Nawaz Sharif allegedly promised to sign the Comprehensive Nuclear Test Ban Treaty and task the ISI with supporting CIA operations to kill or capture Osama bin Laden. The following year, the government fell in a military coup and Nawaz Sharif found himself hauled before a court and quickly handed a life sentence. Sound familiar?

Pakistan’s Supreme Court has already placed Husain Haqqani on the nation’s Exit Control List (ECL), barring him from travel despite the fact that he vehemently denies the allegations leveled against him, returned to Pakistan of his own free will, and has yet to be formally charged with any wrongdoing. In contrast, the court has not taken any position on his accuser, Mansoor Ijaz, who has made nearly daily appearances in the Pakistani media repeating his allegations.

Though this latest episode in Pakistan’s political history is unfolding in deeply troubling ways, there are reasons to hold out hope. The judicial inquiry suffered its first setback when the man appointed by the court to head the commission, former Director General of the Federal Investigation Agency, Tariq Khosa, refused to take part.

And Husain Haqqani himself is not without significant supporters in Pakistan’s legal community. After reviewing the merits of the case, Asma Jahangir — one of Pakistan’s leading human rights advocates and president of the Supreme Court Bar Association — offered to defend Haqqani before the court. As compensation, she is asking only 4,000 Rupees — about $45.

Still, many in Pakistan and abroad are watching the proceedings anxiously. If Pakistan holds democratic elections as planned in 2013, it will be a historic moment for the country when the next government forms. Not once has Pakistan seen a transition between consecutive democratically elected governments. More often, we have seen the democratic process derailed by a misguided judiciary. Let’s hope history is not repeating itself.