Lahore-based Hamid Khan studied law at the universities of Punjab and Illinois and has been practising for more than 30 years. His Constitutional and Political History of Pakistan is a landmark publication. His books on inheritance and administrative law are prescribed texts in Pakistani law schools.
Khan earned kudos for leading a movement against President Pervez Musharraf's Legal Framework Order, which gave the military ruler sweeping powers. He shook the country when, in open court, he boycotted the then chief justice of Pakistan, Sheikh Riyaz Ahmed, and the court's proceedings, terming them illegal. One judge walked out. Parliament came to a standstill for a full year because of the opposition's agitation, supported by the lawyers, against the LFO.
Khan was also one of the driving forces behind the formation of cricketer Imran Khan's Tehreek-e-Insaf party.
A man who stands for freedom and democracy, Hamid Khan spoke to Contributing Editor Sheela Bhatt in Islamabad recently.
Can you comment on the 17th Constitution Amendment Bill which gives parliamentary endorsement to President Musharraf's powers and the laws he has made since taking over more than four years ago?
We lawyers have never accepted Musharraf as the president of Pakistan. Because his taking away of powers is illegitimate. It is a result of the use of force. There was no condition existing in Pakistan under which he could have taken over as chief executive, dismissed the prime minister, and suspended the constitution. He also undermined the judiciary by forcing independent judges to quit, leaving behind the sycophants to give verdicts in his favour.
We lawyers didn't accept Musharraf's takeover and the justification of his takeover by the Supreme Court. We thought the Supreme Court was no longer a constitutional court, no more an independent body fit to adjudicate upon matters. Mainly because judges have taken an oath under the provisional constitutional order which was passed by Musharraf himself.
Once that order was passed by Musharraf, the Supreme Court said he could be chief executive for three years. But before he could complete three years he became too ambitious to retain power. So he said he would hold a referendum to decide whether he should continue for five years.
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The effect of that order is that it virtually rewrites the constitution in major areas like parliamentary democracy, federalism in Pakistan, and judiciary and its powers. We are very disturbed. The whole purpose behind the exercise was to keep himself in power.
Who supported him in passing the 17th amendment?
That's where the dispute took place. He brought a few people to parliament by rigging the election. He used State resources to ensure that his people make it to parliament. In spite to that he could not get a majority. So he encouraged horse-trading and was able to break up the opposition by offering ministerships. He could break the Pakistan Muslim League (Quaid-e-Azam) and the National Alliance. A few of the People's Party members switched over. His nominee Mr [Mir Zafarullah Khan] Jamali was elected with a majority of one vote.
The Opposition, including the Muttahida Majlis-e-Amal, said at the time that they do not accept the LFO because one person can't have the right to amend the constitution. For full one year no work could take place in parliament and the courts. Parliamentarians would walk out and not allow the proceedings. Similarly, we lawyers had a movement going on. We said we will not accept the bar formed under this constitution.
Then how did Musharraf win?
Around the middle of 2003, Musharraf, through the establishment and intelligence channels, was able to mould the MMA to his point of view. And they helped him to pass the 17th amendment bill.
Without the MMA's support he could not have gained the requisite two-thirds majority in the National Assembly. The amendment virtually recognises the LFO as a part of Pakistan's constitution. Which we will never accept.
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In Pakistan we don't have a genuine parliamentary form of government because the prime minister, Cabinet and National Assembly are at the mercy of the president who himself is not even an elected president. He is even now in service.
Even the vote of confidence they have provided to pass the 17th amendment is unconstitutional because Pakistan's constitution does not allow for a vote of confidence in the president. It is provided to the prime minister alone. Through an unusual mechanism the constitution is being used to keep a man in uniform as president.
What were your expectations of the 17th amendment? After all, you had run a year-long agitation against the LFO.
We had five points to be withdrawn from the LFO and we demanded that the constitution be free of them. Of our five demands only two have been accepted. One is regarding the extension of judges' tenure by three years. It's gone. We also wanted that the National Security Council should not be a constitutional body. It should work independently. We want to keep them away from military dominance and under civil influence. That demand has been accepted.
Our other demand was that we will never accept a man in uniform as our president. He has to be elected under constitutional provisions. Even if Musharraf resigns, as per the law he has to wait for two more years to stand for an election. All serving oficers have to wait two years as per law.
Second, the president now has discretionary powers to dissolve parliament and the provincial assemblies. Zia had the same powers, which were repealed, but now Musharraf has them again. When Zia acquired these powers it had a destabilising effect on Pakistan. Musharraf brought those powers back under the LFO. We are against this. We don't want parliament's supremacy to be [subordinated] to the president.
Also, Musharraf has put all important laws under the LFO. This curtails the powers of our parliament and assemblies over these laws. It takes away their power to legislate on important matters like police, local government, elections, accountability, and the central bank. Parliament can only legislate with the president's prior permission. Our demand to take away these powers of the president has been rejected.
Why is there no hue and cry then?
Our media has yet not realised the importance of the issues. I had difficulty convincing even lawyers that these are serious issues. I didn't get as much support as I got before.
The 17th amendment's impact will be tremendous. Now, Musharraf has all the powers sanctioned by the Pakistan constitution. Earlier he was exercising them under the disputed document called LFO.
What did the MMA gain by supporting him?
It is short-sightedness. It is a sellout. They have a government in the North West Frontier Province and they are partners in Balochistan. They were threatened by Musharraf that he will dissolve their assemblies. It's arm-twisting by Musharraf that got him votes.
MMA has seen real power for the first time. Out of six parties in the MMA, Fazlur Rehman was the weak link. He forced the others to follow. He told his colleagues, let's not fight with Musharraf, let's get what he can offer us.
There is a movement in Pakistan for democracy, but it's not an agitation because there are many limitations. Like, we don't have political parties which can organise demonstrations. PPP is the most famous party, but it cannot get people out to fight for democracy. Benazir can get votes, but she may not be able to get people out of their homes for civil rights. Same is the case with Nawaz Sharief. The military rulers of Pakistan are taking advantage of the weak party structures.
Another reason is the stark poverty of Pakistanis. People are concerned about their daily bread.
Most important is the alliance of military rulers, part of the judiciary, and feudal politicians. Through feudal politicians our military men are suppressing the masses. The establishment has tried to undermine my influence by winning over people around me. They are trying hard to weaken me.
Musharraf has promised 'sustainable democracy.'
That is a big farce. Pakistan doesn't have democracy. We have only the facade of democracy. Prime Minister Jamali or Foreign Minister Kasuri have no say, nor can they exercise power.
Prior to taking over power Musharraf was calling Pakistani democracy a sham democracy. He claimed he wants to bring the real one. All Pakistani dictators said the same thing. They think Pakistan needs a democracy which they can guide. Our dictators wants to define democracy in their own way and then support that democracy, which suits them and serves their interests.
So how do you read Musharraf's game? Will he keep his promise to lay off the uniform?
It is too early to say. But he may do it. Within the armed forces there are many factors that might force him to lay off his uniform.
In India many believe the general is a popular man in Pakistan.
Not true. He is an unpopular man. His unpopularity started in a big way from December 2002. Many believed he was a genuine man and would bring democracy and reforms. But as time went on we found that he is like any other military ruler. Some students here or there might still like him, but after all he is a dictator.
But Pakistan is used to them.
We are getting tired of dictators. Take Zia. We even liked him. He was more politically acceptable in rightist and ethnic groups.
Except for the MMA, no one is with Musharraf today. He has simply been imposed on the people of Pakistan. He has been in power for so many years but has not been able to make a substantial difference to the poor people or to the economy.
People are suffering. Amongst his assistants, Kasuri [the foreign minister] hardly fits the description of a diplomat. Shaukat Aziz knows economics, but he is not a representative of Pakistan, he is a representative of vested international groups like the World Bank and the IMF [International Monetary Fund]. Musharraf claims he is a pragmatist. Whatever suits him he will do. Tomorrow if it suits him to have a beard he will have it.
Why is he unable to contain terrorist activities?
Whatever is happening in Kashmir is not terrorism, it's militancy. We have a difference of opinion there.
Having said that, I would say Musharraf has not been able to do what he says he will do. That is where his weakness lies. Because he is a 'pragmatist.' Whenever he touches upon sensitive issues that are difficult he backs off. Like he backed off when the issue of Hudood laws came up. These are special criminal laws which carry Islamic punishments.
In Islam we have Hudood, which means limit in Arabic. We have two types of laws. Hudood [laws carry] the maximum punishment, which includes cutting of hands, stoning to death, etc. We also have Tazir, which means penal laws. In spite of he being so powerful, he is unable to repeal those laws. There is a reaction from our rightist groups, so he is not able to touch Hudood.
Hudood includes four laws which were made in the name of Islam by Zia. It covers prohibition, theft, false deposition in courts and Zina, which is the most controversial. Zina laws are about sexual relationships and include rape, but even consensual sexual relationships fall under the law. Many a time when a woman complains of rape it is hard to prove and they fall in the category of consensual sexual relationship or adultery and the women land up in jail. These laws are very unpopular amongst women. But Musharraf is non-committal because he is afraid of the backlash from our rightists.
How is the legal world of what you call Azad Kashmir?
They have some good judges.Their judgments have been quoted here too. They have their own lower, higher, and supreme courts. Their high court and supreme court are in the same premises in Muzaffarabad. We are allowed to appear with permission. There are about 1,000 lawyers and six district courts. On the administrative side they don't have much independence, but on the judicial side they do. On the administrative side it is run by and large by the ministry of Kashmir affairs in Islamabad.
Do you think Musharraf is the right man to talk to India?
Yes. It is generally believed that conservatives are able to find liberal solutions and liberals are able to find conservative solutions. It is a matter of credibility. It is he who got us into the Kargil problem, which sabotaged the Lahore process. It is so in India where the BJP raises its voice against the Pakistan lobby. Any liberal government in India may not be able to do it. To that extent I agree that conservatives on both sides will be able to bring peace.
But my fears are that they don't mean to do it. Their interest lies in continuation of tension. Arms lobbies on both sides would like to purchase more and more arms. Any move for normalisation is thwarted from both sides. It was Musharraf's mistake in Kargil that became a cause for the BJP victory in 1999.
Can Musharraf be trusted?
Yes and no. But it is not a question of trusting one another. If you look at their political interests either side cannot be trusted.
Are you hopeful about the outcome of the Indo-Pak peace efforts?
No, I am not hopeful. I think both sides are not interested. I strongly feel so. All this is drama to show off to the international community. Both sides are trying to score points.
I believe if there is a liberal and open visa policy, things will change radically. In early September 2003, a high-powered Indian delegation was to come to Lahore consisting of judges and lawyers. They were denied visas by Pakistan. Similar things have happened in India. Both governments want to divert the attention of the people from the real issues. Let people know themselves the real differences between the two countries.
Photograph: JEWEL SAMAD/AFP/Getty Images | Image: Rahil Shaikh