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Is Osama bin Laden Really In Bajaur Agency?

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Pakistan's President Musharraf has declared that Osama bin Laden could in Bajaur Agency, tribal areas sitauted on Pak-Afghan border. If it is true that Osama bin Laden is in Bajaur Agency then he should show haste in catching him as he is the main actor or character in the war on terrorism. After all the president will have some information before making this statement. Now he should be told to catch him as Bajaur Agency is the part of this land of the pure.

President Bush and his cronies should not be allowed to again use the name of Osama bin Laden for winning the election. Now they should be not allowed to play politics on this name. Being a resident of Bajaur Agency I know Pakistan can anything there if it desires so. But politics in Pakistan has been hindering decisive operation against the terrorists. A newspaper comment discussed the political situation in Pakistan. President Pervez Musharraf has got himself in such a legal-technical bind that short of bowing out he is left with no option but to keep tailoring the original 1973 constitution to fit himself. Even as the people of this country continue to agitate his act of sending the Supreme Court judges home through a Provisional Constitution Order (PCO), imposing Emergency and showing himself beyond the reach of any institutional framework, he has gone ahead and amended the Constitution further to try and create “legal firewalls” around him. In other words, he is trying to get the support of the law to save himself from what critics consider to be patently unconstitutional, and thereby illegal, actions. This is most ironic. But the original mischief lies in the Supreme Court’s order validating the “extra-constitutional steps of Proclamation of Emergency of the 3rd day of November, 2007, the Provisional Constitution Order No.1 of 2007, the Provisional Constitution (Amendment) Order, 2007, the Oath of Office (Judges) Order, 2007 and the President’s Order No. 5 of 2007”. Consider.

After President Musharraf PCO-ed the Supreme Court bench which he thought was preparing to guillotine him, the next Supreme Court comprising judges who took oath under the PCO, validated his promulgation of the provisional constitution order. It was a tough task not just on the basis of the established normative framework but also because even the most nuanced argument can hold only a certain number of contradictions in its fold. Therefore it is important to revisit the SC’s short order before commenting on President’s Musharraf last decrees under the PCO.

First, even the new SC bench could not consider the PCO in line with the constitution and had to use the term “extra-constitutional” while eschewing the more forthright prefix “un-constitutional”. Having determined that the COAS/President validly did what he did, the order, nonetheless declared the validation of November 3 actions “subject to the condition that the country shall be governed, as nearly as may be, in accordance with the Constitution (italics added). “As nearly as may be”, of course, can have wide interpretations. The order goes on to give a freer hand to President Musharraf by declaring that:

“In absence of the Parliament [sic!], General Pervez Musharraf, Chief of Army Staff/President, in pursuance of the Proclamation of Emergency of the 3rd day of November 2007 may, in the larger public interest and the safety, security and integrity of Pakistan, under the principle of salus populi suprema lex [let the welfare of the people be the supreme law], may perform —

a. All acts or legislative measures which are in accordance with, or could have been made under the 1973 Constitution, including the power to amend it;



b. All acts which tend to advance or promote the good of the people; and

c. All acts required to be done for the ordinary orderly running of the State.”

The alpha in the list above thus gave President Musharraf the power to amend the Constitution even as the order claimed further that “The old Legal Order has not been completely suppressed or destroyed” and amendments must not affect “the salient features of the Constitution, i.e. independence of Judiciary, federalism, parliamentary form of Government blended with Islamic provisions [sic!].” How the November 3 actions had not impacted some of the “salient features of the Constitution” as listed by the order and how the power to President Musharraf to amend the Constitution “only if the Constitution fails to provide a solution for the attainment of the declared objectives of the Chief of Army Staff/President” is beyond the pale of normal logic. The Constitution does fail to provide a solution for President Musharraf’s “declared objective” of entrenching himself and rising beyond the reach of probity and reproach whether moral or legal. Hence he can rely on his power granted him by the new SC to amend the Constitution in all such places where it does not fit in with his scheme of things.

President Musharraf is now not bound by the clause that prevents government servants from running for elections for two years after retirement. This violates articles 41 and 44 of the Constitution. The amendments in respect of the judiciary — all Supreme and High Court judges who refused to take oath under the Provisional Constitution Order (PCO) will not be re-instated and new amendment validates the legitimacy of all judges who took oath under the PCO — violate article 270 C of the Constitution. All the amendments are Musharraf-specific and seek to shelter him from the reach of law.

The Attorney-General of Pakistan, Malik Qayyum, has said that the issue is now closed to further scrutiny and beyond the purview of the next parliament. If that is the legal advice President Musharraf is getting then he needs a re-think. Mr Qayyum’s interpretation is unprecedented even as the requirement that all such actions be ultimately validated by the parliament has two precedents — General Zia-ul Haq’s RCO (through 8th amendment) and General Musharraf’s LFO (through 17th amendment) needed to be validated by parliament. How can this act, even more anomalous in nature, be deemed as final and outside the purview of parliament or even the SC? There is no way he can escape a final verdict from parliament just like he needed one from the last house. Need we say that that may be harder to come by than was previously the case?

The interesting bit in this is that while the SC in its order hoped that “The Proclamation of Emergency of the 3rd day of November, 2007 shall be revoked by the President and/or the Chief of Army Staff at the earliest so that the period of constitutional deviation is brought to an end”, it let slip in a line which, given changing and changed circumstances, may be enough to bring down this house of cards, tall though it is and getting taller. Says the order, “However, this Court may, at any stage, re-examine the continuation of the Proclamation of Emergency if the circumstances so warrant”.

A word of advice is therefore in order. No amount of tinkering with the Constitution can take away from the fact that President Musharraf’s actions are out of sync with the internal logic of the Constitution. The assumption here is that he has to take his chances. He must not think that he can generate a locus standi for himself by amending the Constitution at will. All such actions will make him even more unpopular and we don’t need to tell him that he can’t afford to take such risks any more, extremely tenuous as his position already is.

 

Muhammad Khurshid, a resident of Bajaur Agency, tribal areas situated on Pak-Afghan border is journalist by profession. He contributes articles and news stories to various online and print newspapers. His subject matter is terrorism. He is also (more...)
 

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"...showing himself beyond the reach of any i... by Robert Sargent on Monday, Dec 17, 2007 at 10:33:53 PM
HOW LONG BEFORE BUSH IS IN THE HOT SEAT,AS MUSHARA... by RICHARD SHADE on Tuesday, Dec 18, 2007 at 4:32:33 AM
This is a million dollar question. The answer is, ... by syed mahdi on Tuesday, Dec 18, 2007 at 2:52:31 PM