Guest Blog | By Ezzat Dawood-Zai
Pakistan: A Lawless Land?

The 16 December 2009 decision of the Supreme Court of Pakistan striking down the National Reconciliation Ordinance, 2007 (NRO) as unconstitutional ab initio, has been hailed across the land as a triumph of law over arbitrary governance. The decision follows on the Supreme Court’s earlier ruling that the Emergency Order, dated November 3, 2007, promulgated by the then Chief of Army Staff (COAS), General Pervez Musharraf, in an attempt to provide legal cover to his coup d’état, was without lawful authority. The two decisions provide a powerful testimony to the ability of state and governance in Pakistan to recover from near fatal blows to its foundations. The need now is to examine one by one the many unlawful acts committed during the lawless interregnum that have landed Pakistan into the present mess.

Executive Decisions:
Pakistan’s Surrender to the United States

While the press has focussed largely on what the decision means for the lives of the rich and glamorous who govern Pakistan, lesser attention has been paid to the basis in precedent being established by the Supreme Court for challenging a host of similar arbitrary decisions taken during the Musharraf interregnum. The Supreme Court, in its ruling, seems wisely to have limited its review to the consistency of the NRO with the constitution, without addressing the question of whether the NRO itself can be treated as valid law or not. In time, however, notice will have to be taken of the numerous executive decisions taken by Mr. Musharraf, without lawful authority, not unlike the promulgation of the NRO, that have had consequences of a life and death nature for Pakistan.

Although many such decisions can be cited, the most prominent was the decision to sever relations with the then legitimate Taleban-led Government of Afghanistan, and join the United States in its invasion and occupation of that country. In retrospect, Mr. Musharraf neither had the authority to take such a decision, nor did he meet the procedural requirements of government decision-making. While Mr. Musharraf, fearing prosecution for treason in the wake of the Supreme Court’s decision on his 2007 declaration of Emergency, has claimed that the top brass are fully implicated in whatever crimes he may have committed, there is evidence that in many cases he may have acted alone.

In a recent TV interview [in Urdu, see below; the video in full, and press coverage in The News], the former Chief of General Staff (CGS) of Pakistan Army, retired Lt. General Shahid Aziz made the shocking disclosure that Gen. Pervez Musharraf generally acted on his own. His consultations with the corps commanders were entirely at his pleasure, and he was not bound by the views expressed by the commanders.

Shahid Aziz cited a startling example to support his contention. He revealed that in a meeting with the top Army leadership, Musharraf indicated that the Americans were asking for a facility at the Jacobabad airfield which they would use only in case a plane was hit and its pilot needed to touch down to save lives. He sought the views of his officers, who were all unequivocal in their opposition. They argued that as President he had given his commitment to the nation that US will be supported in the areas of (1) intelligence and information sharing, (2) use of air-space, and (3) logistic support, while Pakistan will remain totally neutral in this war. It was on this assurance that the people had agreed to go along with his decision. They pointed out that if U.S. planes were allowed to use an air-base in Pakistan, there would be an uproar in the country. Confronted with this opposition, however, Musharraf said that he had already conveyed his consent to Americans, and that he had done so on humanitarian grounds.

Mr. Aziz then went on to disclose that shortly thereafter he received a directive from the President to deploy troops to provide security around the Jacobabad facility. As Pakistan Army troops approached the base, however, they faced U.S. forces that refused to allow them access to the base. Accordingly, Mr. Aziz continued, we then provided security in the perimeter outside the U.S. forces’ perimeter. Not surprisingly, Mr. Aziz and his troops were told by the people around the base that U.S. planes were landing and taking off from the facility all the time.

This was not all. Mr. Aziz then made an even more shocking revelation that a similar facility is available to Americans at Pasni, in Balochistan. When asked how he knew about the Pasni facility? He said he had come across a friend, an air force officer, who had confided in him. Mr. Aziz then wondered if Mr. Musharraf sought approval of any formal forum or discussed or consulted anybody on the subject. Most likely, he implied, Mr. Musharraf acted alone in surrendering to American demands.

Quo Warranto: By What Authority?

The fact that US was using Pakistan airbases was always known to those who are in know of things, who were leaking this information frequently to the press as well. The news here is that an officer of Pakistan Army has publicly acknowledged this fact, including the fact that such uses were allowed without lawful authority ¹ Clearly, Mr. Musharraf had no authority to take such a decision on his own.

Although Mr. Aziz did not mention the date of this decision, it could only have been during one of the two phases of Musharraf’s rule:

1. From 12 October 1999 to 15 November 2002, when he was the Chief Executive and President (except from 12 October 1999 to 12 June 2001, when Mr. Rafiq Tarar was the President); and
2. From 15 November, 2002 to 29 November, 2007, under a quasi-democratic facade.

In the first phase, when “9/11” occurred, Mr. Musharraf had assumed the offices of both the Chief Executive and the President. Under the Constitution, the executive authority of the federation vests in the President (Article-90), who is bound to exercise such powers under the advice of the Cabinet or the Prime Minister (Article-48 (1)). Under the Emergency Order of 14 October 1999, the powers of the Prime Minister were made to vest in the office of the Chief Executive. Under the Rules of Business, 1973, framed under Article-99 (3) of the Constitution, all matters pertaining to war and defence forces have been allocated to the Ministry of Defence, and those to relations with foreign governments, to the Ministry of Foreign Affairs. In the normal course of business, both decisions (i.e. siding with the United States of America, and remaining neutrality in a war between third countries) require Cabinet approval, on the basis of Summaries moved by one of the two ministries, in consultation with the other. As this procedure was not followed, Pakistan’s current military alliance with the United States is in substantive and procedural violation of law and needs to be regularised if it is not be challenged in a court of law.

In the second phase of his rule, the so-called democratic period, when Musharraf was the President and Chief of Army Staff (COAS), the decision to side with the U.S. was a closed transaction. Mr. Aziz remained the Chief of General Staff until the end of 2003, well after the induction of an elected government. Even under the new dispensation, and despite having arrogated considerable powers in the office of the President through the Legal Framework Order 2002, Mr. Musharraf had no authority either as COAS or as President to continue to violate Pakistan’s neutrality and assist the united States in waging war on Afghanistan, without cabinet approval. Clearly, when even the Vice COAS and CGS were not part of the decision making process, one can well imagine to what extent anybody else from civilian political setup would have been involved.

Conclusion

These startling, earth-shaking disclosures have brought to light the darkest side of Mr. Musharraf’s rule. Hundreds of innocent Pakistanis – soldiers and civilians – have paid, and are paying, for the consequences of these decisions in lives, blood, and treasure. The Americans are not just using our airfields, denying access to the Pakistan Army to areas within the sovereign territory of Pakistan, but there are also reports they have boots on the ground, and have actively participated in operations in Pakistan alongside the Pakistan Army.

The United States continues to engage in extra-judicial killing of civilians within the sovereign territory of Pakistan, using drones as well as mercenaries operating under the U.S. Joint Special Services Command headquarters in Bagram, Afghanistan. Now, there are reports that the Americans are considering bombing selected areas in the city of Quetta.

In clear violation of constitutional safeguards to the life and liberty of citizens (under Article-9), and of international human rights laws, Musharraf has admitted handing over a large number of persons to the U.S. Army, without due legal process, in return for head money.

While the Armed Forces can act in aid of civil administration (under Article-245) pursuant to a Cabinet decision, Mr. Musharraf has made no bones that the Army stormed the Red Mosque, killing numerous children, among others, on his personal orders.

In the wake of the Supreme Court decisions, numerous other instances can now be cited where Mr. Musharraf acted without lawful authority (e.g. his patronization of Pakistan Muslim League (Q), attending public rallies, holding party meeting in the Presidency, etc.).

In retrospect, Mr. Musharraf was a law unto himself. Nobody questioned him. The imported Prime Minister was a non-entity, and parliamentarians had little sway on his thinking. Now that the constitution and the law have been restored in Pakistan, it is imperative that these major decisions during his tenure, with which we continue to live and die, be closely scrutinized to see if they are tenable under the Constitution and law, and be regularised or repealed.