Hasan Nisar

Why Musharraf resigned

Zardari Corruption

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PART TWO

PART THREE

PART FOUR

PART FIVE

PART SIX

Habib Jalib

Talat Hussain about Musharraf

Faraz : Muhasra

Missing persons in Pakistan

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Cartoon 8th August 2008

Musharraf

Media

Our embattled media


By Tanvir Ahmad Khan

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GEN Pervez Musharraf’s latest address to the nation and his conversation with foreign journalists the next day has revived the question of balance between freedom and responsibility in our media. He seemed to return to the idée fixe of the present regime that Pakistan’s current troubles are mostly caused by irresponsible journalists.

Furthermore, there was the ancient lament that the foreign media ignores the great gap between the developed West and a primitive Pakistan in its reports and comment.

Prominent amongst the images streaming out of Pakistan during an entire year of political protest were those of a protracted tussle between the government on the one hand and the lawyers and journalists on the other. The media people and the legal fraternity had no background of working in tandem and what telescoped them together was the regime’s paranoid reaction to what these two disparate communities perceived were their essential professional responsibilities.

The lawyers claimed they were upholding the national Constitution and the rule of law. The media people were exercising their right to report the unfolding political drama freely. Draconian measures to curb both the groups probably did more harm to Musharraf’s standing than anything else during his long, mostly unquestioned, rule.

Unlike the predictable conflict with the men of law, Musharraf’s quarrel with the media was an unexpected development. No military ruler of Pakistan had ever been as media savvy as Musharraf. On their part, most journalists began by supporting him. He had taken major decisions such as ending the state monopoly on broadcasting that led to a veritable revolution in the dissemination of news and views.

An entire new generation of well-educated young men and women emerged that cherished freedom of expression while continuing the tradition of being patriotic to a fault.

In a recent BBC lecture, the distinguished Cambridge philosopher, Onara O’Neill, built up a case for media responsibility by arguing that any search for truth needs structures and disciplines and that this search is undermined by casual disregard of accuracy or evidence.

In Pakistan’s case, the need for such structures was never an issue as the innate restraint of a conservative Muslim society exerts a normative pressure. Compared to the mass media in the West, the Pakistani media is much less prone to slander and sensationalism. The major newspapers and electronic outlets can be tediously conservative. There is, indeed, considerable room for improvement in the discipline of accuracy and evidence.

There are discernable weaknesses of infrastructure and database, which can only be aggravated by the financial losses that the Pakistan government has imposed on media organisations.

The present travail of the Pakistani media comes largely from the unusual power its electronic component acquired in a society where access to printed information and knowledge is limited.

The regime wanted this power to work exclusively to the government’s advantage which could be done only by massive airbrushing from the picture of grim realities such as violated women, provincial insurgencies, thousands of terrorism-related fatalities including in the armed forces, police atrocities against peaceful demonstrators and, above all, a wanton disregard of the Constitution.

As if this litany of horror was not enough, the year ended with the assassination of Benazir Bhutto, an event which sent shock waves across the globe and caused much foreboding about Pakistan’s future.

The Pakistani media has never failed to lend a helping hand wherever something positive could be found. Consider the transformation of public opinion in Pakistan about India. What might have been only a tactical shift in inter-state relations has struck deep roots as the media whole heartedly supported it. It demolished the myth of eternal hostility and enabled General Musharraf to conduct a dialogue with the Indian leadership in a tranquil environment.

In the ‘war on terror’ Musharraf got media support so far as the paradigm of it was concerned. But his regime never succeeded in carrying conviction with the people when it came to details. From the commitments made to the United States in 2001 to the “collateral damage” in Pakistan’s tribal belt, government versions have regularly conflicted with independent reports filed by Pakistani and foreign journalists.

It is often said that all governments are obliged to take liberties with truth for reasons of state. If this is so, they must also accept the fact that in this information age and in this globalised world a counter-narrative would also emerge.

Since the credibility of the regime remained in free fall, the suppression of the mainstream media resulted in a high premium on unconventional information disseminated through the internet and the mobile phone. These new sources of information are subject to no discipline of verification but are often credited with more truth than they carry. During ten weeks of travelling in Europe recently, I was struck by their impact even on professional foreign observers of the Pakistani scene. Between the blogs and the text messages, the official version became almost irrelevant.

Basically, Gen Musharraf fell out with the media because of its coverage of his conflict with the higher judiciary. There is no doubt that real-time coverage made a great difference. Without it, the forced retirement of the judges and the reconstitution of courts might not have become a public issue. Nor would there be internal and external questions about the plan to use democratisation as a means to perpetuate military rule by another name.

Even illiterate Pakistanis say that media curbs continue because the government plans to rig the forthcoming election or not hold it at all.Therein lies the ultimate justification for a complete restoration of media freedom.

Without that freedom democracy would remain devoid of credibility. Without recovering the lost trust no future government will be able to calm Pakistan down. The media must inform the people accurately; the state must treat it with respect. The Pakistani media is perfectly capable of balancing freedom with responsibility. It is time that the executive too learns to tolerate the accountability inherent in a modern democratic state.

Pakistan's Judicial History

PCO and its victim judges


By Justice Sajjad Ali Shah
OUR Constitution is the basic law of the country and is the fountainhead of all other laws, which are subordinate to and consistent with it. The oath of office is prescribed to important office-holders in the third schedule to the Constitution, and calls on them to preserve, defend, uphold and act according to the basic law.

Judges of the superior courts and officials of the armed forces also take the oath with an additional requirement for armed forces personnel — they are required to steer clear of political activities.

If the Constitution stands suspended, the oath of a judge remains intact because he acts according to law which includes a suspended Constitution, essentially an extraordinary situation. A judge, having taken oath under the Provisional Constitution Order (PCO), can declare both the suspension of the Constitution and the PCO illegal.

The country has seen constitutions abrogated in 1958 and 1969 and martial laws imposed. But the judicial system continued as it was, without any removal of judges. In 1971, after the war with India and the consequent fall of Dhaka, West Pakistan saw Zulfikar Ali Bhutto become president and the first civilian CMLA.

The martial law imposed in 1969 continued, with many government officers being dismissed and retired on grounds of misconduct, without a mandatory inquiry. However, some were retired following scrutiny of their record and in consultation with the chief justices of the high courts.

In 1977, General Ziaul Haq imposed martial law, suspending the Constitution instead of abrogating it as was done on two previous occasions. The Supreme Judicial Council was approached to investigate whether any judges in the high courts were selected for political reasons and, after an inquiry and the right of personal hearing, several were retired as political appointees.

As if this was not enough, the 1981 PCO was promulgated after the Supreme Court granted validation to the martial law, empowering the CMLA to amend the Constitution.

As a result, many judges were retired from the Supreme Court and the high courts without having their say. This PCO came after a delay of four years as the Supreme Court had granted conditional validation that required all orders and regulations passed by the regime to be subject to judicial review by superior courts. Hence, such orders were often challenged in the courts, much to the chagrin of the martial law authorities.

The martial law administration also wanted the courts cleared of non-cooperative, independent judges; hence a list from the federal ministry of law ensured that the selected ones were not invited to take oath.

In 1981, I was a judge in the Sindh High Court. The Chief Justice was instructed by the federal law secretary in Islamabad to meet the governor of Sindh, and he returned from the meeting to announce that two judges from the Sindh High Court, Abdul Hafeez Memon and G.M. Shah, would not be allowed to take oath. All other judges were asked to appear before the governor at 2 pm.

Some in the Sindh High Court argued that if all judges boycotted the oath-taking and bowed out, other pliant ones would replace them and therefore it was far wiser to fight from within. Meanwhile, events in other high courts were kept under wraps. After the oath, it transpired that countless judges had not been called and all those who declined to take the oath became heroes, garnering much admiration from members of the bar and the public.

In fact, despite attempts to conceal the events in the Supreme Court, certain proceedings did come to light. Chief Justice Maulvi Mushtaq of the Lahore High Court, who headed the bench of five judges and sentenced Prime Minister Zulfikar Ali Bhutto to death, had fallen out with President Zia.

Maulvi Mushtaq had been elevated to the Supreme Court but, although ready to take oath, he was not invited. Chief Justice of Pakistan (CJP) Anwar-ul-Haq invited all the judges of the apex court to his chamber to discuss this matter and the fact that the PCO barred the jurisdiction of the courts.

The CJP began with the junior-most on the list, ad hoc Judge Fakhruddin G. Ebrahim, who replied that although he was not party to the judgment in Nusrat Bhutto’s case, he had followed it and since the PCO curtailed the jurisdiction of the court and nullified the effect and object of the judgment, he would not take oath.

For similar reasons, Justice Dorab Patel also refrained but all other judges agreed and lastly the CJP declared that since he was the author of the judgment, he too would opt out.

The actual facts remain with the federal ministry of law but rumour has it that only Maulvi Mushtaq was not invited. If this is true then apart from Fakhruddin G. Ebrahim, hats off to Dorab Patel who refused to become the CJP. It is worth a mention here that Dorab Patel, Mohammad Haleem and G. Safdar Shah had acquitted Mr Bhutto. It thus became clear that General Zia believed that under the PCO of 1981, he had the right to pick and choose judges favoured by the government and axe others.

On Oct 12, 1999 General Pervez Musharraf suspended the Constitution. Another PCO replaced the Constitution. One of the seven points in the speech the general gave shortly after taking over was his pledge to rebuild institutions. Interestingly, the Supreme Court came under attack again. Finally after a delay of three months, 15 judges were not given an oath under the PCO. These included five judges of the Supreme Court who chose to stay out.

However, General Pervez Musharraf has the unique distinction of imposing ‘martial law’ twice in the same tenure. On Nov 3, 2007 he imposed emergency-plus with the suspension of the Constitution and promulgated the PCO under which he sent home 13 out of 17 judges of the Supreme Court, including Chief Justice Iftikhar Mohammad Chaudhry, and prevented about 50 judges of the high courts from taking oath.

This is how the entire judicial system was demolished to avoid a judgment from the apex court that restricted Musharraf from holding dual office — that of the army chief and the president’s — and denied him eligibility in the elections if he chose to stay in uniform. President Musharraf succeeded in obtaining an interim order to proceed with the polls. Apprehending a judgment against him, the president introduced the PCO to turn the judiciary around and the new Supreme Court issued a judgment in his favour on the basis of the law of necessity.

It is surprising how the western powers have been able to digest this unconstitutional and malafide action of dismantling the judiciary, an essential pillar of democracy. How this issue has been sidelined in favour of the elections is amazing. If the elections are held, President Musharraf may have a hung parliament of his choice and the issue of restoration of judges will certainly recede into oblivion.

The writer is a former Chief Justice of Pakisan.