Tuesday, June 2, 2015

No Country for Nekokaras



 In this land of pure Nekokara committed the ultimate sin to talk about the law and rights of the people. He is a criminal and so are we. I was not  considered once  for an assignment as the boss thought I talked about law too much. An excellent article that unmasks the ugly face of the political leadership and their minions.

Afzal A Shigri



No Country for Nekokaras

by: Saad Rasool.
Pakistan is a country of clashing extremes. It is a land of euphoric highs, and abysmal lows. It is a place of deep disappointments, and soaring hopes. Embedded somewhere in this conflicting myriad, we are a people who watch, in silence, as our Davids are slain at the hands of our Goliaths, and then proceed to construct (futile) heroic monuments, in remembrance of the martyred.
 In the latest and perhaps the most striking episode of this recurring saga (which is Pakistan), the political establishment of PML(N), in collusion with their loyalist civil “servants,” have “dismissed from service” an honest, upright and intrepid police officer, SSP Muhammad Ali Nekokara, on fallacious charges of “inefficiency and misconduct.” SSP Nekokara’s story is the perfect example of piercing hope (on part of this admirable officer), in the face of dictatorial oppression (on part of the government functionaries).
 As it transpired (and is evident from the available record), SSP Nekokara was serving in ICT, during the fateful days of PTI’s long march and dharna against the PML(N) government, in August of 2014. Through successive moves of political incursion, as PTI and PAT supporters started to inch towards the Parliament and Prime Minister House, SSP Nekokara was ordered, by his (partisan) political superiors, to “use force” against unarmed protestors, ostensibly in order to protect the political fiefdom of the PML(N) government. In fidelity to the cardinal principle that PSP officers are “servants” of the State (and the people), as opposed to any one political party, SSP Nekokara exercised his independent judgment to recommend that ‘use of force’ may result in unnecessary damage and loss of life.  To this end, on 26th August 2014, in light of the events of Model Town tragedy, SSP Nekokara recommended to the Secretary Interior, in writing, that he did not support using force, by the law enforcement agencies, against a crowd of over 30,000 people, including women and children.
However, disregarding SSP Nekokara’s professional recommendation, on the fateful night of 30th August 2014, the Deputy Commissioner of ICT ordered the use of force, including tear gas, for dispersing the gathered PTI and PAT supporters.
 The following morning, on 31st August, 2014, Secretary Interior telephonically directed SSP Nekokara to use additional force, in order to disperse the remaining protestors. Deeming this to be an unwarranted use of State power against hapless citizens, SSP Nekokara refused to carry out these orders, and instead requested to be transferred or sent on leave.  Almost immediately, he was removed from his post, and left to face the unrelenting wrath of political superiors.
 In the aftermath, owing to the loss of life that resulted from State barbarity on the night of 30th August, 2014, despite SSP Nekokara’s professional advice to the contrary, he was nominated in multiple FIRs that were lodged by the protestors.
 Ironically, on the other hand, the government (irked by his defiance) suspended SSP Nekokara, and initiated an enquiry against him, which culminated in a report by the Inspector General of Police, Baluchistan, Mr. Muhammad Amlesh, recommending “dismissal” of SSP Nekokara from Police Service. Based on this (tainted) enquiry report, Mr. Aizaz Chaudary, the Foreign Secretary (Authorized Officer), recommended SSP Nekokara’s dismissal, which was duly processed and notified by Secretary Establishment, on Wednesday.
 Interestingly, in violation of established principles of our jurisprudence, and in particular, Article 10-A of the Constitution (Right to Fair Trial), SSP Nekokara was not afforded the full spectrum of due process of law throughout these proceedings, and his dismissal was recommended without having sought a complete reply from him, or having afforded him a personal opportunity of hearing by the Authorized Officer.
 In the land of the pure, this is (depressingly) the fate of a Civil Servant who swears allegiance to the empire of our Constitution, the spirit of our laws, and the interest of our people, instead of bowing his head, in ignominious surrender, before the political masters of our time.
 The blatancy of government’s monstrosity in dismissing SSP Nekokara finds no justification in our democratic ethos or the Constitution. To begin with, Article 4 of the Constitution requires every individual (including SSP Nekokara!) to be “dealt with in accordance with law”. And this, not only entails the right to due process of law, but also to be judged in accordance with the provisions of the Civil Services Act, 1973, the Police Act, 1861, the Police Order, 2002, and most importantly, judgments of the honorable Supreme Court. These laws unequivocally state that a police officer is only bound to obey “lawful” orders of the superiors (e.g. Section 3(m) and Section 4 of the Police Order, 2002). The honorable Supreme Court of Pakistan, expounding upon these principles, explicitly stated, in the case of Zahid Akhtar vs. Government of Punjab (PLD 1995 SC 530), that Civil Servants “must not” follow orders from the superiors, which violate the letter and spirit of our laws. Furthermore, in the case of Anita Turab (PLD 2013 SC 195), the honorable Supreme Court went a step further to declare that Civil Servants “are not subservient to the political executive”, and must take decisions “only in accordance with law in the public interest”.
 Additionally, Article 5 of the Constitution deems loyalty to the “State” (note: not to the “government”), and “obedience to the Constitution”, to be a “basic” and “inviolable” duty for us all.  And the ambit of this incontrovertible command of the Constitution encompasses SSP Nekokara, as well as members of the inquiry commission, Secretary Establishment, and the political superiors. How then can members of the inquiry commission dismiss SSP Nekokara for abiding by the command of Article 5, is beyond justification.  In fact, it can be argued that, in dismissing SSP Nekokara, members of the inquiry commission, the Secretary Establishment, and the political elites, have all acted in contravention of Article 5 of the Constitution.
For over six decades, the defenseless people of Pakistan have suffered, excruciatingly, at the hands of a bureaucracy that has become nothing but a pliable tool in the hands of partisan politics. The fabric of our history is stained with innocent blood, spilled as a result of bureaucratic excesses, from Model Town to D-Chowk. As a result of this disgraceful paradigm, today, we are a State that cultivates Gullu Butts and thrashes the blind. A State that protects Shahrukh Jatoi, and punishes Rimsha Masih.  One that dismisses Nekokara, and rewards its loyal “servants”.
 SSP Nekokara is being punished for ‘disobeying’ the political masters, and instead staying loyal to the interest of the people, and the mandatory command of our laws, as enunciated by the honorable Supreme Court.  If we allow, in criminal silence, for his dismissal to persist, we will all be complicit in stamping a perverse brand of politics onto the spine of our Civil Services.  If we allow him to be punished, we would all have added our breath to that sinister wind which is likely to extinguish all hope of an independent bureaucracy in Pakistan.
 If what Nekokara has done is a crime, let us all muster the courage to step forth, and be counted among criminals.
 The writer is a lawyer based in Lahore.  He has a Masters in Constitutional Law from Harvard Law School.  He can be reached at: saad@post.harvard.edu, or Twitter: @Ch_SaadRasool

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