Summoning Caesar to Trial in Pakistan
Liaquat Ali Khan
Gaius Julius Caesar, a Roman military and political dictator, is the role model of the military generals of Pakistan. Every Pakistani Chief of the Army Staff, known as the COAS, daydreams of morphing into a Caesar. Since the creation of Pakistan in 1947, four Chiefs have successfully anointed themselves as Caesars. Pervez Musharraf has crowned himself twice to confirm and reconfirm that Caesar has "all powers" to suspend and amend the Constitution at will. The people of Pakistan are angry but quiescent. The politicians are contesting undemocratic elections to share the crumbs of power. However, the lawyers of Pakistan are not supporting Caesar's charkha, the spinning wheel of all powers.
Caesar's charkha spins to gather all powers. Before lifting emergency on December 15, Caesar, acting alone, using all powers he had previously bestowed on himself, made several amendments to the Constitution. The Constitution requires that the bicameral legislature pass the amendment with "not less than two-thirds of the total membership" of each House. This procedure, however, applies only if the Constitution is operative. If the Constitution is suspended, Caesar assumes all powers to amend the Constitution.
But how does Caesar assume all powers to suspend and amend the Constitution? Caesar simply asserts power to obtain power. On November 3, Caesar issued the Provisional Constitutional Order (PCO) to assert all powers. In turn, the PCO conferred all powers on Caesar. Using all powers, Caesar suspended the Constitution. The PCO further yielded that Caesar "may from time to time amend the Constitution, as is deemed expedient." Hence, Caesar enjoys the power to amend the Constitution.
The logic is magical. Caesar has all powers to make the law that confers all powers on Caesar.
Take Article 270C of the Constitution. A day before lifting the emergency, Caesar---without consulting the Senate, a powerless chamber of the bicameral legislature, which, ironically, can never be dissolved---issued an Order to amend the Article. The Article thereby stood amended. The amended Article declares that the judges "not having been given or taken oath" under the Oaths law have ceased to be judges. But it was Caesar who made the Oaths law not to invite certain judges to take oath. Caesar's charkha turns as he pleases.
It gets better. Article 270C did not exist in the original Constitution. Using the charkha of all powers, Caesar added Article 270C to the Constitution to permanently remove 'disloyal' judges who refused to endorse his first (1999) suspension of the Constitution. The current amendment to the Article removes 'disloyal' judges who refused to endorse his second (2007) suspension of the Constitution.
After removing the Supreme Court and Provincial High Courts judges who will not spin with Caesar's charkha, Caesar still has no trust even in the judges who have taken the oath to protect and preserve Caesars' charkha. To safeguard even against the PCO judges, Caesar issued an Order, under which all constitutional amendments that Caesar made "shall not be called in question by or before any Court, including Supreme Court, Federal Sharia Court, a High Court, any forum or authority, on any ground whatsoever." No more evidence is needed to show that Caesar detests the judiciary. He detests the lawyers even more because he has not yet been able to pass a law that would disbar all lawyers that challenge Caesar's charkha.
The Lawyers' Call
The lawyers of Pakistan hold Caesar's charkha in contempt. They refuse to endorse the undemocratic elections that are being held to defraud the people of Pakistan and to perpetuate the PCO hegemony of the armed forces. They cannot accept PCO laws and amendments that Caesar has made to muzzle the press and turn the nation into a slave state of foreign masters. The lawyers of Pakistan will not trade away the rule of law for any benefit whatsoever. Therefore, they call for the following measures.
1. The lawyers of Pakistan call for an end to PCO revolutions. A PCO revolution is the mockery of law. It subjects the Constitution to the Order of Caesar. The Constitution is meant to be the supreme law of the land. When a self-anointed Caesar can suspend the Constitution at will, the Order of Caesar is the supreme law of the land. A legal system in which the Order of Caesar is the supreme law of the land, no democracy can succeed, no constitution can survive, and no fundamental rights are protected. Any democratic elections held under the Order of Caesar are inherently deceitful. Therefore, the lawyers of Pakistan are not supporting the January 2008 general elections.
2. The lawyers of Pakistan call for the restoration of an independent judiciary. The first step, beyond compromise, must be to reinstate the judges who have been removed from office on baseless charges of aiding terrorists and conspiring to harm the nation. The second step, beyond compromise, must be to undo the laws that disable the judiciary from reviewing the PCO amendments Caesar has made to the Constitution. An independent judiciary is indispensable for the rule of law. Therefore, the lawyers of Pakistan cannot sacrifice the judiciary to foolishly safeguard the Order of Caesar.
3. The lawyers of Pakistan call for Caesar's trial under Article 6 of the Constitution. Article 6 reads as follows: "Any person who abrogates or attempts or conspires to abrogate, subverts or attempts or conspires to subvert the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason." An independent Judicial Commission must be established to investigate whether Caesar has violated Article 6 of the Constitution. An open and fair trial, but without granting any immunity to the defendant, will restore the supremacy of the Constitution and verify the claims of Caesar whether the judges he removed were indeed aiding and abetting terrorists and conspiring to harm the nation, forcing Caesar to proclaim emergency and abrogate the Constitution.
In supporting lawyers, Pakistan declines to live under the Sword of PCOs, which can fall anytime to cut the Constitution into pieces.
Ali Khan is professor of law at Washburn University in Topeka, Kansas.