Huzaima Bukhari & Dr. Ikramul Haq
While celebrating 79th Pakistan Day, we cannot ignore that the country is still facing multiple challenges—economic uncertainties, regional disparities, income and wealth inequalities. abject poverty, political antagonism, religious bigotry, intolerance, victimization in the name of accountability, disharmony between the centre and provinces, terrorism, sectarianism, militancy, extremism, corruption, absence of rule of law, nepotism, cronyism, favouratism, just to mention a few. What makes the situation more worrisome is a meaningless debate about the real motives for creation of Pakistan, witch-hunting in the name of ideology and little care for providing socio-economic justice, making Pakistan a welfare State.
Since its inception, Pakistan faced a daunting challenge of establishing true democratic polity based on constitutional supremacy, rule of law and equity. Long military rules and in between experiments of “controlled democracy” denied the people of Pakistan their sovereign right of self-governance, for which many lost their lives and many, their honour, to secure independence from the British raj. The dictatorial rules muzzled all the State organs—especially judiciary that became an approving arm for many unconstitutional rules. However, the defiance demonstrated on March 9, 2007 was a starting point that culminated in liberating this organ on March 16, 2009. The apex court has since then passed many judgements, especially the verdict in Asghar Khan’s case [Human Rights Case No. 19 of 1996], atoning its past, but its decisions have been openly defied by those who matter in the land and their cronies in power who claim to be championing the cause of democracy!
For judiciary, November 3, 2007 was the beginning of a new era. A dictator imposed judiciary-specific martial law—this time the victims were not politicians but the judges. For the first time, it was an issue of survival for those who always sided with men in uniform against politicians. Restoring status quo ante existing on November 2, 2007—reversing unlawful acts of General Pervez Musharraf—was done in the wake of insurmountable public pressure. The post-March 16, 2009 scenario—judiciary versus government—was created by forces that wanted to undermine democracy but they failed. The effectiveness of people’s power that reigned from March 9, 2007 to July 20, 2007, from November 3, 2007 to March 16, 2009—culminated in the second restitution of the Chief Justice of Pakistan on March 22, 2009—paving the way for continuation of democracy.
In the initial days after restitution of judiciary, there was a great mood of jubilation in all circles, but all changed when the Supreme Court not only declared the National Reconciliation Ordinance (NRO) ultra vires and void ab initio in Dr Mobashir Hassan & Others v Federation of Pakistan and Others, PLD 2010 SC 1 but also asked the government to revive matters of alleged funds stashed in Switzerland. The refusal to do so on solid grounds of Article 248(2) of the Constitution of Pakistan resulted in the indictment and punishment of Premier Yousaf Raza Gilani for contempt. Between 2009 and 2018, the Supreme Court took up many cases, using its suo muto powers, causing hysteria in many circles. There has been severe criticism from many quarters, especially those in power, that judiciary is “transgressing its constitutionally-defined limits”. In Panama case, this was the main thrust of all the three lawyers who represented the Sharifs.
Unfortunately, political polarization has diluted the valiant common struggle waged by all segments of society, most notably by lawyers, media, social and political activists, for restoration of an independent judiciary. People even after Decade of Democracy [2008-18] are deprived of their fundamental rights and the higher judiciary has failed to enforce the same—the case in point is non-implementation of Article 25A and 19A. There is a need for implementing rule of law and good governance.
Our history is marred by anti-people and autocratic rules—both military and civilian alike. Asghar Khan’s case revealed the sordid events—how the mighty men in Khaki and mufti—unholy alliance of military junta and bureaucrats occupying the important posts—tried to ignore and distort people’s mandate. The revelations in the Asghar Khan’s case clearly identify the faces responsible for undermining the entire political system. Supreme Court played its part to unveil them, but then politicians and institutions failed to bring them to justice till today! It was admitted that huge money was released by a bank for political purposes. It is yet to be proved how much was given to politicians and how much was embezzled for self-aggrandizement. How many people minted money in the name of ‘national interest’ can be anyone’s wild guess but the episode as narrated in Supreme Court’s judgement in Asghar Khan’s case exposed the very fragility of the entire system where rule of law was flouted with impunity. This was and still remains the main factor behind our failure to establish a democratic polity.
Prior to 2007, the role of judiciary in validating coups d’état was highly lamentable. Like all other institutions, judiciary in the post-independence period, suffered due to weak democratic traditions, fights between economic vested interests, rivalry of influential politicians and bitter power struggle between the landowner cliques and civil-military bureaucracy. In post 2007 era, the Supreme Court unnecessarily invoked suo moto powers in many cases. Tragically, when State enterprises like Railways, PIA and Pakistan Steel etc were—and still are—wrought with inefficiencies and corruption, judicial intervention pushed these to the brink of collapse, rather than helping their privatization, restructuring or any other way for revival.
As “press and nation rise and fall together”, the same is true for judiciary. It is a fact that no organ of the State works in isolation from socio-economic-political conditions, but it is also true that present-day Supreme Court, after the exist of Justice (retired) Mian Saqib Nisar, has bravely resisted external pressures as well as street power to influence its decisions. It is now delivering decisions within the boundaries of law. This is a very heartening trend as once higher judiciary is independent and fair, the mighty sections become fearful to flout laws, and adventurists refrain from thinking to take supra-constitutional steps to disrupt the democratic process.
As a nation we must resolve for constitutional supremacy and strict adherence to rule of law. If no action is taken against the violators of laws of land being powerful and possessing money power, then what is the meaning of democracy and rule of people? Kleptocracy in the garb of democracy is as bad as naked military rule.
It is time we revive the resolution of founders of Pakistan for a true democratic rule by punishing violators of Article 6 of the Constitution, and all persons, not politicians alone, who have soiled their hands in any kind of financial scam. This process of accountability should be strictly as per law fulfilling all requirements of Article 10A.
The writers, lawyers and authors of many books, are Adjunct Faculty at Lahore University of Management Sciences (LUMS)