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Huzaima Bukhari
“When laws do not rule, there is no constitution”—Aristotle in The Politics.
There is always a tendency to follow precedents. This means that once an example has been set, the subsequent response is to continue walking on the path set by the predecessors because that appears to be the most convenient way to uphold status quo regardless of the fact that in doing so there may be chances of trampling over the most sacred document—the constitution—of the country
Throughout the existence of Pakistan as a free nation since 1947, historians would have observed consistent violations of the supreme law of the country—the Constitutions. Whether among others, these are related to various coup d’état, fundamental rights of the public, federal-provincial relationship or taxation laws, those in power, policy makers, political parties and citizens in private capacity, have been clearly overlooking the provisions contained in the earlier constitutions of 1956, 1962 and the present 1973. As a student of political science, it would be interesting to examine the various forms of breach of the constitutions.
The act of violation started with the two consecutive dissolutions of the constituent assemblies by then governor generals of Pakistan, Ghulam Muhammad and Iskander Mirza in 1954 and 1958 respectively. Encouraged with ample support from the judiciary for no plausible reasons, the military began serial depositions of successive properly elected civil governments. Who knew that ironically, the very product of the Constitution, would suspend it, laying grounds for martial law and obtaining endorsements from the apex court. Consequently, this country remained deprived of the due process of democracy creating a political vacuum that continues to persist till today despite three peaceful transfers of power after completion of term in office in the last two decades.
The most disturbing violation came at the behest of those very members of the judiciary who take the oath to safeguard the Constitution. Instead of adopting a strong stance against the violators, they sought justifications through invoking Kelsen’s theory and “law of necessity” giving a free hand to untrained personnel to handle sensitive and technical matters related to running the domestic and international politics as well as governance of the country. Come to think of it, only when the judiciary itself was uprooted by a former military dictator in 2007 and a state of emergency imposed in November of that year did it dawn upon it to revisit and overturn its earlier case law; and first time in the history of Pakistan, judges who sided with the military dictator by taking oath under the Provisional Constitutional Order (PCO) were dismissed by the former Chief Justice of Pakistan, Iftikhar Muhammad Choudhry.
One cannot expect violators of the constitution to enforce ‘the Constitution’. Resultantly, the citizens of this country could never to this day, lay claim to fundamental rights to which they are entitled under the Constitution which by itself is infringement of Articles 9 to 28. With the flow of so much ‘waters under the bridge’ of suspension of the constitution, even the innocent people of this country seem to have come to terms with compromising their constitutional rights.
Few, including sitting parliamentarians have ever raised their voice in relation to the contents of Article 25A which explicitly promises that the State is to provide free and compulsory education to children aged between 5 and 16 nor has the judiciary bothered to take cognizance of this violation. Interestingly, suo motu notice was taken of high fees levied by privately run educational institutions but no report to this effect was demanded from the ruling government. Is it not obvious that where government fails, the private sector will fill up the gaps then why blame it for charging for services that should be rendered free. Absence of related legislation is another violation of the constitution.
Pursuant to previously set examples by those at the helm of affairs, it does not come as a surprise if the public also transgresses the Constitution. Article 256 states: No private organization capable of functioning as a military organization shall be formed and any such organization shall be illegal.” In the presence of this edict, there were and are, private groups possessing latest weapons that have unleashed a reign of terror as on 12 May 2008 in Karachi, as in 2016 when 77 members of five gangs were nabbed by the police in South Punjab or when the Chotu gang was playing havoc in Rajanpur with heavy artillery forcing the army to launch Zarb-i-Aahan because the police was incapable of fighting the gang. The question is how, these insurgents managed to thrive under the noses of the district administration and law enforcement bodies? Another instance of violation of the supreme law of the land.
Where a group called “Salar Force” is trained in a military-like fashion even if it means armed with mere cudgels, is capable of resisting law enforcement institutions in a confrontational situation and its leaders are given ceremonial guard of honour by uniformed men, other than harbouring a private army, how else can this be described? No wonder, a petition on this account has been filed in Lahore High Court for breach of Article 256 proving continuance of contravention of the Constitution.
Under these excruciating circumstances, it is a wonder how our country is functioning. It is a pity that the guardians of the Constitution were unable to uphold its sanctity amid difficult situations. The results are before us: An overwhelming population of illiterate and unskilled youth for whom the chances of a decent livelihood are very bleak; extremely poor administration devoid of either, development, maintaining law and order or promoting economic stability; incompetent legislators claiming to be public representatives who cannot discern or debate on bureaucratic legislations regarding taxation and act as mere rubber stamps; rampant corruption in public and even private sectors; politicians who are more concerned about their privileges rather than welfare of the people who elect them to power; political parties that are run on the basis of family lineage instead of democratic values….the list is endless! It is high time that the supreme law of the land is given the status it actually merits by every living citizen of this country.
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The writer, lawyer and author, is an Adjunct Faculty at Lahore University of Management Sciences (LUMS)