Pakistan in Emergency: Resisting the Enemy Within Commentary
Pakistan in Emergency: Resisting the Enemy Within
Edited by: Jeremiah Lee

JURIST Special Guest Columnist Faisal Naseem Chaudhry, an advocate of the Lahore High Court in Lahore, Pakistan, says that the greatest danger to law and the constitution in Pakistan in the wake of General Pervez Musharraf's declaration of emergency rule is not the much-maligned judiciary, but the military dictator himself and those who would support him…


In 1987, U.S. Supreme Court Justice William Brennan gave a lecture in Jerusalem on human rights in America during security crises. He said history had shown that human rights had been regularly infringed upon in times of emergency, not by reason of calculated actions, but as a result of panic. Each time, after the crisis had passed, it had become clear that there had been no justification for violating civil rights.

The Islamic Republic of Pakistan was once privileged to have a non-Muslim Supreme Court Judge: Mr. Dorab Patel, who belonged to the minority community of 'Parsis' who refused to take an oath under a Provisional Constitutional Order originating from the table of General Zia-ul-Haq. While delivering a lecture in 1995 his Lordship stated, "An independent judiciary is a judiciary which is able to resist the pressures not only of the government but also of public opinion and of popular prejudices. And in the long run, a judiciary will not remain independent if it is not able to fight the enemy within."

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The 'enemy within' have taken a fresh oath of office under General Musharraf's Provisional Constitutional Order. Almost fifty Superior Court Judges belonging to the Supreme Court and the four provincial High Courts have been sacked. Mr. Justice Ramday, who headed the Bench delivering the landmark judgment of 20 July 2007 reinstating the then dysfunctional Chief Justice, has been put under house arrest under the talented supervision of Pakistan Rangers here in the city of Lahore. The status of Chief Justice House – the official residence of Pakistan's Chief Justice – in Islamabad is still unclear. More than 24 hours have passed in the 21st century but the entire country is forced to look at blank TV screens. At the same time, it is dreadful that US is merely 'deeply concerned', 'closely watching', and regards the imposition of Martial Law as 'regrettable'.

The 'enemy within' has also returned from Dubai; Mrs. Benazir Bhutto, the Daughter of the East, the daughter of former Prime Minister Zulfikar Ali Bhutto who preferred to walk to the gallows rather than shaking hands with the then military dictator who had usurped him. Mr. Bhutto never believed in the lawlessness of Martial Law; Mrs. Benazir, however, firmly believes in the National Reconciliation Ordinance 2007 promulgated on 5 October 2007 which entitles her to exoneration from all corruption-linked cases registered between 01 Jan 1986 and 12 October 1999. Her self-centered post 20 July 2007 support for the government which has given a second lease on life to General Musharraf will long be remembered by the masses of Pakistan.

The 'enemy within' addressed the nation in the late hours of 3 November. The Chief of Army Staff was addressing the helpless people while wearing a local dress and not his uniform, perhaps an attempt to dilute the harshness of Martial Law – an unsuccessful attempt as always. The international community was also reminded of the concocted viewpoint that since the situation prevailing in Pakistan is radically different from the West, one should not expect identical standards of civil liberties and human rights. A bare perusal of the text of Proclamation of Emergency coupled with the speech of the Army chief testifies, however, that it was the functioning of the judiciary alone which created panic in the corridors of power. Their Lordships were accused of a number of wrongdoings, most particularly the following:

  • The Supreme Court facilitated terrorists by releasing them thereby causing a huge setback to the government's fight against terrorism. (A poor attempt to seek the patronage of international community in favour of extra-constitutional crime).
  • Civil and police officials are being called to the courts and insulted; so, they are reluctant to take any action. (They were summoned with one simple question as to under which provision of the Penal Code detainees were arbitrarily detained for years).
  • Interference of the judiciary in matters exclusive to Executive and Legislature thereby resulting in poor economic growth. (National assets were sold at throw away prices. Executive and Legislatures were unconcerned, the Judiciary inquired into).
  • Uncertainty caused by the judiciary in respect the of presidential election. (A plain issue; do the military laws allow an army officer of whatever rank to submit his nomination papers for the presidential elections?)
  • Lack of harmony between the pillars of the state solely on account of judicial activism. (This activism for the first time in the history of Pakistan enabled poor people seeking justice against executive transgressions to access the apex court by just mailing a one-page letter).

It must be clear to the entire world that on 3 November, Pakistan faced not an emergency but fully-fledged Martial Law. An emergency is imposed under the Constitution, but here the Constitution has been held in abeyance. An emergency does not provide for the sacking of Superior Court judges, only a Martial Law can commit this trespass. An emergency can be challenged before the Superior Courts; Martial Law does not provide this liberty.

All the 'enemies within' will become forgotten memories as opposed to those Honourable Judges of the Superior Judiciary who have declined to take an oath of allegiance to a military dictator. They will always live in the hearts of the people, in the pages of history.

Faisal Naseem Chaudhry is an advocate of the Lahore High Court, Lahore, Pakistan
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