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Tuesday, May 21, 2024

Preserving Constitutional Democracy in Pakistan

Pakistan's journey as a constitutional democracy has been marred by tumultuous challenges and violations of the very principles it seeks to uphold. Despite the landmark enactment of the consensual constitution in 1953, the assigned domains and boundaries within the constitutional framework remain ambiguous.

With the enactment of the consensual constitution on August 14, 1953, the Islamic Republic of Pakistan (IRP) attained the status of a “Constitutional Democracy.” However, despite the passage of half a century, the delineation of “Assigned Domains” remains unclear. After the painful events of May 9, 2023, the confusion has multiplied. The sitting government has agreed to hold trials in Military Courts for the protestors who violated the security of the Corps Commander House in Lahore. Justice (R) Jawad Khawaja, the former Chief Justice of Pakistan (CJP), has filed a petition in the Supreme Court (SC) with the prayer, “When civilian courts were functioning, civilians not in active service could not be tried in military courts.” Justice Khawaja is no ordinary lawgiver.

He single-handedly sparked the “Lawyers Movement” in 2007 when he was the first judge to resign from the Lahore High Court (LHC). He arrived at the court premises, tendered his resignation, handed over his official vehicle, and drove back in his personal car. Though a very private individual who seeks no personal glory, during a private conversation, he admitted that the dismissal and mistreatment of the then Chief Justice of Pakistan (CJP) was unacceptable to him. He wanted to lodge the strongest possible protest, which was stepping down from the bench. Several other judges followed suit, turning it into a joint movement of the bench and the bar for the “Rule of Law.”

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Understanding the matter better

Led by the Presidents of the Supreme Court Bar Association (SCBA) and Lahore High Court Bar Association (LHCBA), true comrades Aitzaz Ahsan and Mohsin Kamal, it evolved into a mass movement. The subsequent Long March was spectacular. The nation stood up against the dictator and his unconstitutional acts, which led to the removal and arrest of several superior court judges through the use of force.

The United States of America is the world’s oldest written constitutional democracy. Enacted in 1787 by the founding fathers, it has been hailed as the “Miracle of Philadelphia.” Similarly, the 1973 constitution of the Islamic Republic of Pakistan, as written, is no small feat. If the establishment had not been preoccupied with the aftermath of the East Pakistan debacle, the document might never have come to fruition. Pakistan has a history of disregarding and abrogating constitutions, a trend that must come to an end. There have been interesting debates against this fundamental agreement between the rulers and the ruled. Ayub Khan, the first usurper, abrogated the 1956 version, thus laying the foundations for the breakup of Jinnah’s Pakistan.

Zia, the third dictator, openly displayed his disdain for the document, using derogatory language like, “I can tear and trash the constitution.” Musharraf, the fourth military ruler, was more concerned about the State under his rule than the people he was supposed to serve. Currently, there is a debate that human rights are subordinate to the interests of the State as defined by the rulers. Yes, the interests of the State are supreme, as defined by the Constitution, not individuals in power.

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The “Constitutional Assigned Domains” must be respected and obeyed. However, there is a constitutional provision for the promulgation of emergency in case of a serious calamity or threat, but the courts have the jurisdiction to review such actions. There can be no compromise on human rights, as they are non-negotiable. Under Article 245, the Armed Forces can be called upon to assist civilian law enforcement agencies, but fundamental rights cannot be taken away. The misuse of this clause by the present government is a serious violation of the law that will not go unpunished.

After decades of abuse, the constitution of Pakistan stands on the brink of abrogation. In the Supreme Court of Pakistan (SCP), there is ongoing debate regarding the 1923 Official Secrecy Act and the 1952 Military Act. These laws, such as the 1864 Sedition Act enacted by Queen Victoria, the 1923 Secrecy Act, the 1935 Government of India Act, and the 1952 Military Act gifted by Ayub Khan, should have been declared null and void after the promulgation of the constitution in 1973. Developed by elected representatives of the people, such colonial and dictatorial laws should have been buried with the kings, queens, and generals who crossed the red line. All unconstitutional laws must be abolished.

Recently, the government has launched an Economic Revival Plan in which the support of the Army has been emphasized. The Chief of Army Staff (COAS) also addressed the gathering. While the Fauji Foundation and its affiliated industries are headed by civilian professionals, the rulers have invited men in uniform to assist them. However, their role should be limited to providing security, for which they should be tasked to present their plans.

In addition to economics, academia has also come under their security expertise. During the current Prime Minister’s tenure as Chief Minister of Punjab, he appointed retired generals to head two large universities (Punjab and Engineering Universities). Senior professors raised concerns about the competence of military personnel to lead academic institutions. The response was that “generals are trained to handle all situations.” While the security situation may have improved, it came at the cost of academics, as capable academicians left due to rough treatment and maltreatment. In the case of FC College, after de-nationalization, an experienced academic leader was appointed as Rector, who then hired a retired Army officer to ensure security. This approach should have been applied in public sector institutions as well.

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Constitutional domains are well-defined. By inserting Article 6 in the constitution, Bhutto believed that no one would ever dare to cross the line, but he has been proven wrong. After the conviction of Pervez Musharraf under Article 6, now Article 245 is being stretched to deny human rights, which cannot continue indefinitely. The decision by the apex court regarding the trial of civilians in Military Courts operating under the Army Act of 1952 will be a test of the applicability of the constitutional framework. However, it should not end there; the supremacy of the Constitution should be established for all times to come. After over 75 years of its existence, Pakistan finds itself at a crossroads of true freedom (Haqiqi Azadi), but this time the stakes are very high. Hopefully, sanity will prevail with strict enforcement of constitutional domains.


The writer is Ex-Chairman Pakistan Science Foundation. He can be reached at fmaliks@hotmail.com. The views expressed in the article are the author’s own and do not reflect the editorial policy of Global Village Space.