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Huzaima Bukhari & 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 has been facing various crises and conflicts—most painful are, of course, denial of fundamental rights to the masses, frequent breaches of the supreme law of land and perpetual economic and political instability. Even after more than 75 years of independence our rulers have failed to ensure, across the board “accountability” (sic) and judicial independence, hence, it is no surprise that corruption has become a way of life for all, especially for those in power.
The successive civilian and military governments have failed to end socio-economic disparities, disharmony between the centre and provinces, poverty, apathy towards the less-privileged, militancy, religious and political intolerance—just to mention a few. What makes the situation more bizarre are the 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.
On the 83rd anniversary of Pakistan Day, unfortunately, the antagonism and confrontation between the alliance government of Pakistan Democratic Movement (PDM) and Pakistan Tehreek-e-Insaf (PTI) has taken an ugly turn. Developments in the wake of violent clashes in Lahore, Islamabad and various other cities, on the occasion of court appearances of Chairman PTI and former prime minster—the first against whom vote of no confidence succeeded in our constitutional history—are leading the country towards anarchy and economic collapse.
It is highly lamentable that in the fifty years of existence of Constitution of Islamic Republic of Pakistan [1973 Constitution], none of the elected prime ministers completed their full five-year term in office—courtesy unholy alliance between so-called democratic parties and the power that matter in the Land of Pure—and politicians have yet not learnt any lessons from history. They are unwilling to resolve contentious issues through political dialogue, rather prefer taking the same to higher courts.
In view of above, one can understand why since its inception, Pakistan has 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” have denied Pakistanis their sovereign right of self-governance, for which many sacrificed their lives and many, their honour, to secure independence from British raj. The dictatorial rules muzzled all the state organs—especially judiciary that became an approving arm for many unconstitutional governments. However, the defiance of March 9, 2007 was a redeeming start that culminated in the restitution of judges on March 16, 2009.
Since March 16, 2009, the Supreme Court of Pakistan passed many notable judgements, especially the verdict in Asghar Khan’s case [Human rights case No. 19 of 1996 decided in 2012—reported as 2012 SCMR 2008], atoning its past, but regrettably, this decision remains unimplemented till today. The open defiance of this order and others testify to the fact that after the exit of late General Pervez Musharraf as President in August 2008, all civilian governments though claiming to be championing the cause of democracy have actually been obeying the real masters.
From 2009 to 2023, the Supreme Court took many suo muto cases under Article 184(3) of the 1973 Constitution including the most recent one of elections in Punjab and Khyber Pakhtunkhwa in 90 days. 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 prime minister, his family and close relative, the finance minister, dubbed as de facto premier.
Unfortunately, political polarizations in the aftermath of Panama’s case and selective accountability diluted valiant common struggle waged by all segments of society, most notably lawyers, media, social and political activists, for restoration of an independent judiciary. What a tragedy that people even after dawn of civilian era (sic) in 2009 are crying for their fundamental rights. There now prevails deadly disillusionment about “justice” promised by all the political parties in 2009. Everybody says there is a need for implementing rule of law and good governance and strict enforcement of the 1973 Constitution, as these alone can put an end to the recurrent chaotic situations 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 de facto mighty rulers tried to ignore and distort people’s mandate. This process continues and reaffirmed with the events of April 2022 and development thereafter. It remains the major factor behind collective failure to establish a democratic polity, notwithstanding “open announcement” that military is now “neutral”.
Not only the unabated interference in politics by men in khaki, but also the role of judiciary in validating their coups d’états and extraconstitutional acts is equally deplorable in our history. 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 Asghar Khan’s case, Supreme Court identified 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 exposed the very fragility of a system where rule of law had been and is still flouted with impunity. The review petition of the main accused and order to FIA to continue investigation in April 2019 are no more of interest to anyone—not even to the so-called vibrant media.
As “press and nation rise and fall together”, the same is true for judiciary. Of course, 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 others have nothing to hide. Accountability must start from the highest adjudicators and claimants of defending ideological frontiers of the only Islamic country with nukes and missiles. They should come forward voluntarily and declare true incomes/assets/liabilities of self, spouses and dependents. Once higher judiciary becomes transparent by truthful voluntary declarations, the mighty men in khaki and mufti will have to follow suit to prove by their actions, not by words, the supremacy of 1973 Constitution.
In 2020, members of Women’s Action Forum (WAF) under the Right of Information Act, 2017, sought information regarding assets, salaries and benefits of honourable judges of Supreme Court and High Courts as well as of military leadership. However, none responded, except Justice Qazi Faez Isa. He recently placed his financial details on Supreme Court’s website as well. It is open to scrutiny by anyone!
In the wake of March 16, 2009, the nation was genuinely enthusiastic about dispensation of justice. All were expecting establishment of representative democracy and effective accountability, but instead they witnessed mounting tension between different organs of the State. Administration and dispensation of justice in Pakistan and establishment of bona fide democratic system till today remain 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 and those heading the judiciary.
On March 23, 2023 [83rd Pakistan Day], we as a nation must resolve for supremacy of the 1973 Constitution and strict adherence to rule of law. If no action is taken against violators of laws of the land, especially the supreme law of land, no matter to which political party or institution they belong to, then what is the meaning of supremacy of Constitution and democratic dispensation?
It is time that all pro-people forces and masses en bloc revive the resolve of founders of Pakistan for establishing a true democratic rule, egalitarian society and accountability of all, not selective of politicians when in opposition or someone being defiant to those who claim to be so-called defenders of Nazaria-i-Pakistan (Pakistan ideology) and their cronies. They (ab)use ideology and religion to deprive the people of their inalienable right of self-governance and prosperity. The process of accountability should be for all, not of politicians alone, must be strictly as per law and across the board, fulfilling all requirements of Article 10A of the 1973 Constitution.
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The writers, lawyers, are Adjunct Faculty at Lahore University of Management Sciences (LUMS), members Advisory Board and Visiting Senior Fellows of Pakistan Institute of Development Economics (PIDE)