Written by Ms. Huzaima Bukhari and 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, after nearly 75 years of existence, the state of Pakistan is still caught in various conflicts—perpetual political instability, economic disparities and disharmony between the centre and provinces, terrorism, militancy, cases of scandals and corruption, 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 the daunting challenge of establishing true democratic polity based on constitutional supremacy, rule of law and equity. Long military regimes and in between experiments in “controlled democracy” have denied the people of Pakistan their sovereign right of self-governance, for which many lost their lives and honour, to secure independence from the British raj. These dictatorial rules, both military or civilian, have muzzled all state organs—especially judiciary that became an approving arm for many unconstitutional rules till the advent of so-called decade of democratic rule in 2008. However, the defiance demonstrated on March 9, 2007, was a starting point that culminated in ending military rule on March 16, 2009.
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For the 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—paved the way for a continuation of democracy—many believe as ‘controlled’ and muzzled.
In the initial days after restitution of judiciary, there was the great mood of jubilation in all circles, but everything 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 pertaining to funds allegedly stashed in Switzerland. The refusal to do so on valid grounds of Article 248(2) resulted in the indictment and punishment of Premier Yousaf Raza Gilani for contempt. Many questioned validity of the verdicts against Yousaf Raza Gilani and Mian Muhammad Nawaz Sharif—three times elected Prime Minister of Pakistan.
From 2009 to 2018, the Supreme Court took up a lot of cases, using its suo muto powers, causing hysteria in many circles attracting severe criticism from many quarters, especially those in power, that judiciary was “transgressing its constitutionally-defined limits”. In the Panama case, this was the main thrust of all the three lawyers who represented the First Family. Unfortunately, political polarization 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.
The citizens of Pakistan since independence have been deprived of their fundamental rights—the state organs failed to ensure the same. They never bothered about implementing rule of law and good governance that alone could have put an end to judicial activism.
The apex court in its verdict in Asghar Khan’s case Human rights case No. 19 of 1996, reported as Air Marshal (Retd.) Muhammad Asghar Khan v General (Retd.) Mirza Aslam Baig, Former Chief of Army Staff (PLD 2013 SC 1)] established a departure from its legacy. But this verdict like many other decisions has been openly defied by those in power though they keep on championing the cause of democracy! It was taken note of by the Supreme Court of Pakistan in Suo Moto case 7 of 2017 as under:
“Pursuant to the judgment in Air Marshal Asghar Khan’s case the involvement of ISI and of the members of the Armed Forces in politics, media and other “unlawful activities” should have stopped. Instead when TLP’s dharna participants received cash handouts from men in uniform the perception of their involvement gained traction. The Director General of the Inter-Services Public Relations (“ISPR”) has also taken to commenting on political matters: “history will prove the 2018 general elections were transparent”.
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Our history is marred by anti-people and autocratic rules
Asghar Khan’s case revealed some sordid events—how the mighty tried to ignore and distort people’s mandate. Like all other institutions, judiciary in the post-independence period suffered due to weak democratic traditions, fight between economic vested interests, the rivalry of influential politicians and the bitter power struggle between landowner cliques and civil-military bureaucracy.
Tragically, when state corporations like Railways, PIA and Pakistan Steel were—and still are—wrought with corruption and bankruptcy, we are facing the same situation on political front as was prevailing when Asghar Khan’s case was filed. The said case identified the faces responsible for undermining the entire political system. Supreme Court played its role but then politicians and institutions failed to bring them to justice! It was admitted that huge money was released by a bank for political purposes. None bothered to establish till today 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. Unfortunately during the Decade of Democracy [2008-18] and even under the present coalition government of Pakistan Tehreek-i-Insaf (PTI) no remedial measures were taken vis-à-vis factors mentioned in Air Marshal (Retd.) Muhammad Asghar Khan v General (Retd.) Mirza Aslam Baig, Former Chief of Army Staff (PLD 2013 SC 1).
As “press and nation rise and fall together”, the same applies to the 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 has resisted external pressures, including street power. It is now delivering decisions within the boundaries of the law. This is a very heartening trend as once higher judiciary becomes independent and fair, the mighty sections would be fearful of flouting laws, and adventurists would refrain from thinking before taking supra-constitutional steps to disrupt the democratic process.
What are the issues Pakistan is currently experiencing?
While celebrating 82nd National Day on March 23, 2022, and soon completing 75 tumultuous years of our nationhood, we are still perplexed as to how a state purportedly created in the name of ‘Islam’ is juxtaposed with the term ‘Republic’. Pakistanis wonder how a Parliament, where majority is not that of theologians, enacts Western-inspired laws and yet claims that Shariah is supreme. In the Western world, ‘republic’ is considered a State that precludes both monarchy and clergy. In our context, the predominant view (though totally misconceived) is that divorced from religion, politics is “changezee” (chaos, anarchy and disorder).
جلالِ بادشاہی ہو کہ جمہوری تماشا ہو
جدا ہو دیں سیاست سے تو رہ جاتی ہے چنگیزی
What Iqbal emphasized in the couplet, Jalali badshahi ho ya jamhori tamasha ho
Juda ho deen siyasat se, to reh jati hai changezee, is that ethics (here deen is misconstrued as organised religion and not way of living) should be part and parcel of governance, but the interpretation of clergy is that politics should only be in the name of religion. They conveniently ignore the first stanza of the couplet. If both stanzas are read together, the idea that emerges clearly is that whether it is monarchy or democracy, governance sans ethics is “changezee”. Shariah has become a contentious issue since the adoption of Objective Resolution of 1949. In a fragmented society marred by sectarian hatred (not merely genuine differences over interpretation of Islamic laws) this has becomes a permanent source of conflicts with claims and counter claims on how to run the State.
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During nearly 75 years of existence, Pakistan has witnessed many upheavals—a journey from crisis to crisis has at its core the struggle for establishing a true democratic polity and a welfare state. The way united opposition is agitating by filing a no-confidence move (voting is expected on March 28, 2022) alleged pre and post poll rigging in the aftermath of 2018 elections testifies that inclination to evolve a national consensus for people’s rule is still a distant dream after nearly seventy-five years of independence. Liberation from colonial masters in 1947 to continuous subjugation in the hands of powerful classes—militro-judicial-civil complex, businessmen-turned-politicians and absentee land owners—remains the real and painful dilemma for the masses.
The failures on political, economic and social fronts during the decade of democracy (2008-2018) and thereafter under the PTI government once again confirm lack of determination on the part of politicians to act collectively and resolutely to defeat de facto power—thus the apprehensions of strengthening of ‘garrison state’, as elaborated intensely by political scientist, Dr. Ishtiaq Ahmed, in his book, Pakistan: The Garrison State: Origins, Evolution, Consequences 1947-2011, are proving true.
The significant achievements in many areas during the last 74 plus years have been dampened by the non-existence of national cohesion and people’s rule where masses can get real benefits of growth and resources. Despite all odds—indifference and apathy of political leadership, learned helplessness of masses and long military rules—the nation has showed resilience and unshakable faith in the electoral process whenever they got a chance.
They did it on July 25, 2018 as well by giving an unequivocal verdict against the forces of obscurantism (fooling the masses in the name of religion). It is now the collective responsibility of all democratic forces to galvanise and mobilise masses for consolidating democracy and countering forces bent upon “controlling” elected institutions. Instead of fighting over petty things, the legislators should send a clear message to judiciary to interpret laws and refrain from indulging in real politik. Enforcing the will of people is essentially a political question that cannot be resolved in the courts. Since our leadership has failed in the past on this account, the entire society is facing devastating effects of unrepresentative rules—approved by higher courts.
Why rule of law should be implemented at all costs?
It is high time that all stakeholders should initiate a meaningful dialogue for converting this garrison state into a modern, democratic country that is the only road to salvation. The tragedy of garrison state is that its de facto rulers and cronies working for them give a damn to the aspirations of people and have done nothing worthwhile for the less-privileged—an attitude leading to a suicidal path.
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On March 23, 2022 [82nd 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 violators of the laws of land, especially the supreme law, then what is the meaning of supremacy of the Constitution? It is time that we revive the resolve of Pakistan’s founding fathers for establishing a true democratic rule, by punishing violators of Article 6 of the Constitution and all persons, not politicians alone, who have dirtied their hands in any kind of financial scam. This process of accountability should be strictly as per law fulfilling all requirements of Article 10A.
Written by Ms. Huzaima Bukhari and Dr. Ikramul Haq
Dr. Ikramul Haq, Advocate Supreme Court, specialises in constitutional, corporate, media and cyber laws, ML/CFT related laws, IT, intellectual property, arbitration and international tax laws. He established Huzaima & Ikram in 1996 and is presently its chief partner as well as partner in Huzaima Ikram & Ijaz. He studied journalism, English literature and law. He is Chief Editor of Taxation. He is country editor and correspondent of International Bureau of Fiscal Documentation (IBFD) and member of the International Fiscal Association (IFA). He is Visiting Faculty at Lahore University of Management Sciences (LUMS) and member Advisory Board and Visiting Senior Fellow of Pakistan Institute of Development Economics (PIDE).
Ms. Huzaima Bukhari, MA, LLB, Advocate High Court, Visiting Faculty at Lahore University of Management Sciences (LUMS), member Advisory Board and Visiting Senior Fellow of Pakistan Institute of Development Economics (PIDE), is author of numerous books and articles on Pakistani tax laws. She is editor of Taxation and partner in Huzaima & Ikram, and Huzaima, Ikram & Ijaz, leading law firms of Pakistan. From 1984 to 2003, she was associated with Civil Services of Pakistan. Since 1987, she has been teaching tax laws at various institutions including government-run training institutes in Lahore.
The views expressed in this article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.