Dr. Ikramul Haq
The resolution of March 23, 1940 paved the way for a separate homeland for the Muslims of India after a long-drawn struggle against colonial rule. However, since independence on August 14, 1947, our state is still caught in various conflicts—economic disparities, disharmony between centre and provinces, poverty, apathy towards the less-privileged in cvovid-19 endemic, militancy, religious and political intolerance, cases of horse trading, “accountability” (sic) for refusing to change party loyalty or being defiant, interference in judicial independence, corruption as way of life, endless debates about the real motives for creation of Pakistan, witch-hunting in the name of ideology and role of men in khaki in politics, just to mention a few.
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 the restitution of judges on March 16, 2009. The apex court, thereafter passed many judgements, especially verdict is Asghar Khan’s case [Human rights case No. 19 of 1996 decided in 2012—2012 SCMR 2008], atoning its past, but its decisions remains unimplemented, rather openly defied. Those in power and their opponents though claiming to be championing the cause of democracy are obeying the real master at home and foreign lenders and donors.
From 2009 to 2018, the Supreme Court took many suo muto cases under Article 184(3) of the Constitution. At present, it is hearing a case of one of fellow judges, causing concerns in many circles seeing it as alleged retaliation for defiance—see details in A process of accountability, TNS, [Political Economy] The News, March 14, 2021. There has always 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 three-times elected, now disqualified Prime minister, his family and close relative, the finance minister but dubbed as de facto premier. Unfortunately, political polarisations since then and selective accountability diluted 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 are not getting their fundamental rights and there is disillusionment about “justice” promised by the ruling Pakistan Tehreek-i-Insaf (PTI) with the help of coalition partners. Everybody says there is a need for implementing rule of law and good governance and strict enforcement of Constitution of Islamic Republic of Pakistan [“the Constitution’], as these alone can put an end to recurrent chaos in the state.
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 tried to ignore and distort people’s mandate. This was and still remains the main factor behind collective failure of all to establish a democratic polity. The role of judiciary in validating coups d’état is lamentable as well. Like all other institutions, judiciary in the post-independence period, suffered due to weak democratic traditions, fight between economic vested interests, rivalry of influential politicians and bitter power struggle between the landowner cliques and civil-military bureaucracy.
In Asghar Khan’s case, the apex court identified the faces responsible for undermining the political system but absolved the institution saying these were their “individual acts”. It was admitted that huge money was released by a bank for political purposes. Later, the Federal Investigation Agency (FIA) reported “nothing was proved”! This case exposes the very fragility of system where rule of law has been and still flouted with impunity. The review petition of the main accused and order to FIA to continue the investigation in April 2019 are no more of interest to anyone—not even to so-called vibrant media.
As “press and nation rise and fall together”, the same is true for judiciary. It is true that no organ of the State works in isolation from socio-economic-political conditions, but it is also a fact that present-day Supreme Court is again faced with a historic challenge to prove those who adjudge the others have nothing to hide. The accountability must start from the highest adjudicators and those claimants of defending ideological frontiers of the only Islamic country with nukes and missiles. They should come forward voluntarily and declare incomes/assets/liabilities of self, spouses and dependents. Once higher judiciary becomes transparent by voluntary declarations, the mighty will have to follow the suite to prove by their actions, not by a lip-service, the supremacy of Constitution.
In 2020, members of Women’s Action Forum (WAF) sought under the Right of Information Act, 2017, information regarding assets, salaries and perks of honourable judges of Supreme Court and High Courts as well as of military leadership. However, none responded, except Justice Qazi Faez Isa, who provided the details.
In the wake of March 16, 2009, the nation was very enthusiastic about dispensation of justice. All were expecting establishment of representative democracy and effective accountability, but instead they witnessed mounting tension amongst different organs of the State. Administration and dispensation of justice in Pakistan till today is a distant dream. In the wake of decisions, Chief Justice of Pakistan Mr. Iftikhar Muhammad Chaudhry v President of Pakistan PLD 2010 SC 61 and Dr. Mobashir Hassan & Others v Federation of Pakistan & Others PLD 2010 SC 1, the hope for rule of law, social justice and economic equality did temporarily emerge but was ruthlessly throttled by the ruling elites.
On March 23, 2021 [81st Pakistan Day], we as a nation must resolve for supremacy of Constitution and strict adherence to rule of law. If no action is taken against the violators of laws of land, especially the supreme law of land, then what is the meaning of supremacy of Constitution?
It is time that we revive the resolve of founders of Pakistan for a true democratic rule and accountability of all, not selective one of politicians or someone being defiant. This process of accountability should be strictly as per law and across the board, fulfilling all requirements of Article 10A of the Constitution.
The writer is Advocate Supreme Court and Adjunct Faculty at Lahore University of Management Sciences (LUMS).