You have to stand guard over the development and maintenance of democracy, social justice and the equality of mankind in your own native soil. [Mohammed Ali Jinnah]

Saturday, March 1, 2008

Aitzaz Gives Call for LAWYERS' Black Flag Week

PRESS RELEASE: Thursday, 28th March, 2008.

Aitzaz Gives Call for LAWYERS' Black Flag Week:

In a statement issued here from his residence, where he is detained, Barrister Aitzaz Ahsan, President Supreme Court Bar Association, said that a Long March scheduled for March 09 has been postponed to give Parliament time to restore the deposed judges. It has not been cancelled. The lawyers, he said, appreciated the concern of the Parliamentarians and the leadership of the political parties to permit Parliament to meet and take steps for the restoration of the judges in the first instance.

Aitzaz, however, said that two of the most unfortunate days in our history fell in the year 2007. On March 9, none other than the Chief Justice of Pakistan was arrested. On December 27 a much greater and far more enormous tragedy struck. The most important leader of the country Mohtarma Benazir Bhutto was martyred. The nation continues to mourn her. Lawyers have decided to commemorate both days with sorrow.

Aitzaz said that presently March 9th to 16th would be commemorated as the BLACK FLAG WEEK in and outside Pakistan . Those opposing Musharraf and seeking the restoration of the deposed judges will fly "Black Flags" through out the week as per the following recommended programme

On Sunday 9th March Provincial Bar Councils to hold conventions of Representative Lawyers presided over by a deposed judge at the Provincial Headquarters and hoist black flags

On the Monday 10th and Thursday 13th all Bar Associations will hoist Black Flags at 10.00 a.m. and after speeches by the President and other members will take out rallies. There will also be a Complete Strike on these two days. Arrangements are being made to relay the address of the SCBA President and the CJP on these two days at one and the same time to all the Bar Associations of Pakistan

Rallying lawyers will only carry black flags and black banners. Photographs of the CJP, CJs of Sindh and NWFP and lawyers who were detained may also be carried.

On other days of the week, the flag hoisting ceremony will take place every day and the General Body will meet. Speakers will address the House

Special resolutions will be passed, every day, to appreciate the courage of the three school-going children of the Chief Justice of Pakistan who have been in complete detention since November 3 and have not complained

Lawyers will distribute black flags, arm bands, and head bands during the rallies and at other times among the public. Although it will remain a lawyers' protest, students, civil society and party cadres may join with party as well as black flags

All students, particularly of law, may volunteer to help the Bar Associations.

From March 3 onwards, Press briefings will be given daily by all office bearers of all Bar Associations stating the progress of the preparations for the lawyers' BLACK FLAG WEEK in their district and area.

In this regard Bar Office-bearers will contact students, businessmen, traders, professional and women organizations, chambers, trade unions for logistical assistance and support.

Aitzaz said that the Lawyers' Long March has been postponed but not cancelled. A date for it would be announced, if necessary, after the Parliament has convened. The Black Flag Week will be a soft preparatory step to the Long March and will re-energize lawyers and the Lawyers' Movement.

Aitzaz Ahsan

President, Supreme Court Bar Association

Undo Emergency First

By: I A Rehman

VARIOUS sections of society are laying down priorities for the government-in-making but the top item on the nation’s agenda is withdrawal of the extra-constitutional measures announced under the cloak of ‘emergency’. This is the first task the new parliament must accomplish as otherwise it will not be possible to resume the journey towards democratic governance.

The issue has become urgent for several reasons. The ‘emergency’ (November 3 – December 15, 2007), by its author’s own word, was an extra-constitutional phase. Actions taken during the period were without any constitutional, legal or moral sanction. They cannot be allowed to block the parliament’s or government’s legitimate functioning. Speedy remedial action is necessary because illegal measures acquire legitimacy if left unchallenged for an appreciable time.

Even if Justice Munir’s exposition of Kelsen’s obscure theory, that everything an autocrat can get away with justifies itself, has not been heard for some time, nobody should forget that the Pakistan Judiciary has a tradition of legitimising unlawful actions if the people have acquiesced in them for years and if during this period their elected representatives have failed to overturn them.

Further, the havoc caused to the country’s constitutional order and the norms of responsible governance by actions taken during the ‘emergency’ is so enormous that their continuance in force will undermine some of the most fundamental rights of the people.

During the six weeks of ‘emergency’ the presidency unleashed on the people a Provisional Constitution Order, two constitution amendment orders (that altered 12 articles of the Constitution and added one), four President’s Orders and seven ordinances.

Since the prime objective of the ‘emergency’ was demolition of the superior courts the necessary provisions were made in the Provisional Constitution Order and Oath of Office (Judges) Order, both of November 3, 2007. The purge was extended protection vide a new indemnity provision (Article 270AAA of the constitution) in the Constitution Amendment Order of November 20, 2007 and the matter was again put beyond doubt in the Constitution (Second Amendment) Order of December 14 and yet again in the Order of December 15 that revoked the ‘emergency’. But much other harm to the polity was also done during the emergency.

Four of the amendments to the Constitution made by the Constitution (First Amendment) Order related to the creation of the Islamabad High Court. A more detailed order on the subject was issued on December 14, 2007. The court has started functioning since and the new parliament and government have been confronted with a fait accompli, a transaction concluded in a period of extra-constitutional deviation. Regardless of the merits of the case, the idea of a high court in Islamabad had been criticised by many jurists. The establishment obviously exploited the cover of ‘emergency’ to push a controversial piece of legislation and preempted a debate in parliament. No explanation has been offered as to why it was necessary to interfere with the hierarchy of courts by stealth.

The second constitution amendment order (December 14, 2007) introduced changes in six articles of the constitution, two of which are related to the presidency. The first amendment (Article 41) deletes the reference to Pervez Musharraf’s re-election on the completion of his first term and the purpose is obscure.

The second amendment, to Article 44, is quite strange. What the article said was: “Subject to the constitution, the President shall hold office for a term of five years from the day he enters upon his office.” Now the expression ‘subject to the constitution’ has been replaced with ‘Notwithstanding anything contained in the constitution’. Does this mean that a president will stay in office despite his incurring disqualification under any constitutional provision? If this interpretation is at all possible no constitutional order can allow this provision to hold the field even for a day.

Assembly session The revocation of ‘emergency’ order also makes it clear, perhaps unnecessarily, that after the general election the president alone will decide when the newly-elected assemblies shall meet. If promotion of democracy were desired the provision could have mentioned a definite time-frame.

A serious consequence of actions taken under the cover of ‘emergency’ is the transformation of short-period ordinances into regular and permanent additions to the statute book.

The extra-constitutional regimes have developed a tradition of exempting ordinances issued while the constitution is in abeyance from the constitutional provision that limits the life of a presidential ordinance to four months unless it is approved by parliament or reissued. The ordinances issued by General Musharraf between October 1999 and November 2002, when the constitution was revived, are not subject to the lapse rule. These include the Industrial Relations Ordinance, Freedom of Information Ordinance, the Books, Newspapers, News Agencies Registration Ordinance, the Pemra Ordinance, the Press Council Ordinance, the Defamation Ordinance, etc. These laws have never received parliament’s approval.

Now the Provisional Constitution Order of November 3, issued by the Chief of Army Staff, contains a provision specifically designed to extend the life of ordinances indefinitely. Sec 5 of this order says:

5 – (1) An Ordinance promulgated by the President or by the Governor of a Province shall not be subject to any limitations as to duration prescribed in the constitution.

(2) The provisions of clause (1) shall also apply to an Ordinance issued by the President or by a Governor which was in force immediately before the commencement of the Proclamation of Emergency of the 3rd day of November, 2007.

Media curbs What this section means in simple language is:

(a) All the seven ordinances issued by the President between November 3 and December 15, 2007 have been made regular enactments. These include the two ordinances that amended the basic media laws – the Press, Newspapers, News Agencies and Books Registration (Amendment) Ordinance, and the Pakistan Electronic Media Regulatory Authority (Third Amendment) Ordinance. The most oppressive feature of these amendments is the creation a bar to the use of any material “which defames or brings into ridicule the Head of State, or members of the armed forces, or executive, legislative or judicial organs of the state.” A more draconian curb on the freedom of expression cannot be imagined. No politics is possible if opposition parties, or any citizens, cannot expose the executive as ridiculous or foolish. Had this provision been thought of earlier nobody would have been allowed to criticise Gen Yahya or Niazi for their blunders in 1971 or the commanders who failed in 1965 or 1971. The Pemra Ordinance also revived many harsh provisions of the amendment ordinance of June 2007 which had lapsed in October. Following nation-wide protest the government had promised to withdraw this measure. Now these oppressive provisions have become permanent law without any debate.

Also in this category are the ordinances that amended the Army Act of 1951 to provide for court martial of civilians and the Legal Practitioners and Bar Councils (Amendment) Ordinance that provided for high courts’ intervention in lawyers’ professional matters. Neither measure can bring credit to the statute book. The need for their cancellation cannot be exaggerated.

(b) The dozens of temporary ordinances that have been kept alive year after year by reissuing them every four months have also been regularised. These ordinances include measures of far-reaching implications. For instance, amendments to the Police Order 2000 have been reissued every four months since 2003. The Police Order 2000 was never debated in parliament. That was bad enough, but what is infinitely worse is that the opportunity of a parliamentary scrutiny of the important law during a debate on amendments has been lost.

Ratification of ordinance The National Reconciliation Ordinance (NRO), whose survival has just been confirmed by the apex court, is included in the list of these ordinances. The ordinance should have lapsed on February 4, but for the miracle of ‘emergency’. Nobody needs to waste time on this ordinance. If it is important the measure can be issued as a fresh ordinance any time.

The result is that scores of legal instruments have been sanctified without being endorsed by the legitimate law-making body – the parliament. This amounts to interfering with the incoming parliament’s right to scrutinise all ad hoc legislation. True, the parliament’s right to review any enactment is not affected but the procedure is much more difficult than the method that obliged the government to submit ordinances for ratification.

The need to clear the backlog of ordinances awaiting regularisation has been stressed more than once. The practice of reissuing ordinances, sometimes on the eve of National Assembly sessions, is not only a most objectionable way of law-making, it also undermines the justice system. It was once suggested that all the ordinances awaiting ratification might be introduced in parliament in a single package and the formality of approval expeditiously completed. That option is still available but nobody will see the adoption of laws under emergency as a fair solution. It offends against all canons of justice, democracy and even commonsense.

‘save president’ campaign by PML-Q and allies

[It looks like Q people havn't understood what Pakistani people want, infact they are unwilling to accept the 'Ground Realities']

Source: Dawn

The PML-Q and its allies have started a campaign to muster support for President Pervez Musharraf both inside and outside parliament in the face of other parties’ demand for his resignation.

Some PML-Q leaders met the president at the Army House twice on Wednesday. One of the meetings which took place at midnight involved MNAs elect Chaudhry Wajahat Hussain from Gujrat, Sumaira Malik from Vehari, Sheikh Waqas from Jhang and Riaz Fitiana from Toba Tek Singh.

The meetings were followed on Thursday by a flurry of activity at the residence of Chaudhry Shujaat Hussain who had invited a number of politicians to a luncheon meeting.

Party sources said that some newly elected MNAs and senators and senior leaders of other allied parties, except the PPP-S, discussed at length ways of helping the president out of the situation that he is now facing. Prominent among those who attended the meeting were MQM senators Col (retd) Tahir Hussain Mashhadi and Mohammad Ali Brohi, Justice (retd) Abdur Razzaq Thaheem of PML-F, former Sindh chief minister Arbab Ghulam Rahim, Senator Salim Saifullah Khan, Sumaira Malik, Hamid Nasir Chattha and Mohammad Ali Durrani.

Later, talking to journalists, Chaudhry Shujaat said that the PML-Q and its allies would remain united in parliament to play the role of a positive opposition.

About his meetings with President Musharraf, he said that the president was the constitutional head of the state and everyone would have to accept his position. The president, he said, was ready to receive leaders of any party who wished to meet him.

He claimed that the statement of PML-Q’s Secretary-General Mushahid Hussain Sayed about a possible support for a move to repeal 58(2) b article was his personal opinion and not the party’s policy.

He said the article was made part of the Constitution as a check and balance lever to ensure that no government went above the law of the land.

He said he had called MQM chief Altaf Hussain, PML-F leader Pir Pagara, NPP’s Ghulam Mustafa Jatoi and PPP-S leader Aftab Ahmed Khan Sherpao to discuss the matter and they had assured him that the erstwhile coalition partners would remain united in opposition.