In tonight’s Daily Times there is a well done analysis of the Emergency order and it’s probable outcomes and effects. I normally do not copy articles whole, but this is a historic and important time, so here it is:
By Najam Sethi
Several points are interesting and significant about last night’s political rupture.
1: We have a state of martial law, whatever the government may say and however long it may last. The Proclamation of Emergency (PE) and the Provisional Constitutional Order (PCO) have been signed by the “Chief of Army Staff”, General Pervez Musharraf, and not by “President” Musharraf or Prime Minister Shaukat Aziz. In fact, a PCO is an extra constitutional deviation and only an army chief can order it.
2: The constitution has accordingly been “held in abeyance”. But significantly, the PCO says that the country will continue to be governed, “as nearly as possible” by the constitution. But where there is any other departure from the constitution apart from what is contained in the PCO and the PE from now onwards, it will be at the behest of the “President” and not the COAS. In other words, General Musharraf’s presidency has been confirmed and upheld by the PCO.
3: The PCO prohibits the courts from holding or issuing any decree against the President, the Prime Minister or anyone exercising powers under their authority. Specifically, the President shall now require a fresh oath under the PCO by those judges who wish to be included in the Federal Shariat Court, High Courts and Supreme Court. In this context, four Supreme Court judges have already taken oath under the PCO from President Musharraf and a new chief justice of Pakistan has been nominated, ie, Justice Hameed Dogar. In other words, Iftikhar Mohammad Chaudhry is now to be referred to as a former chief justice of Pakistan. He will be in the company of at least seven other fellow judges who have revolted against the PCO. We should now expect a host of other judges from the four High Courts and possibly Federal Shariat Court to be excluded from the new oath taking ceremonies. If this manoeuvre is accomplished by General Musharraf relatively quickly and the high courts are sufficiently revamped, then we shall have a pro-executive judiciary soon.
4: All ordinances promulgated by the president prior to this PCO remain valid. In other words, the National Reconciliation Ordinance is alive and kicking. Benazir Bhutto will be pleased.
5: The PE lists several reasons for its necessity. The prime reason is the state of deteriorating law and order and the vanishing writ of the state owing to acts of terrorism. But the judiciary has been held to be a major culprit in log-jamming the executive and undermining the war against extremism. Indeed, out of 11 effective clauses in the PE, eight refer to the negative role played by the judges and the judiciary in undermining the war against terrorism, the executive functioning of government and the economy. As such, the Supreme Court under Iftikhar Mohammad Chaudhry is held critically responsible for harming the national interest and exacerbating the crisis of the state and deadlock of the political system.
6: The 2007 PCO does not dissolve the assemblies or the provincial and federal governments. Nor does the PE announce any extension of the term of parliament by up to a year as is possible under a state of emergency. This means that General Musharraf intends to allow these parliaments and governments to finish their terms on November 16 (National Assembly) and November 24 (provincial assemblies), followed by general elections within a stipulated time frame.
7: We should expect the lawyers, civil society groups and most, but not all, the opposition parties to launch a spirited protest on the streets and boycott the courts. But with the electronic media blinded, and the administrations freed from the oversight of the courts, the police and paramilitary forces will be used to arrest opponents and crush the protest movement. Two factors will play a critical role in what happens next: one, the extent to which the lawyers can continue their protest and if necessary sacrifice some dead bodies for their cause; two, the role played by the People’s Party of Ms Bhutto and the JUI of Maulana Fazalur Rehman. We should also expect a surge in terrorist activities and bomb blasts by Taliban and Al Qaeda elements to take advantage of the situation.
8. Ms Bhutto has returned to the country in the midst of the crisis. The government will expect her not to destabilise its modus operandi in exchange for a power sharing deal. In all probability, she will oppose the PCO and PE. Supporting it would incur the wrath of Pakistanis who generally don’t like what General Musharraf has done. But she may lend only token PPP support to the protest movement. Much the same may be said of Maulana Fazal’s JUI. Instead she will demand that the road be cleared for free and fair general elections so that the people may give their verdict on all parties.
9. Writ petitions will fly against the PCO. The new SC will agree to hear them. But no judgment will be forthcoming until such time the elections have been held and a new parliament is in place to indemnify the PCO and confirm President Musharraf as the legitimate president of Pakistan. In other words, the unconstitutionality of this act will probably be pronounced by the new SC after it has got retrospective validity from a new parliament some months hence. The question of whether General Musharraf will remain army chief for another five years or take off his uniform then will have to be settled by the new parliament in 2008 as happened in 2003.
10. The US, EU and the international community will condemn the PCO and demand a restoration of full fledged democracy via free and fair general elections. General Musharraf should not have any problems complying with their demand in due course.