Events since March 9, 2007 – a day of defiance in Pakistan’s judicial history – represent a struggle for rule of law and constitutionalism. On July 20, 2007, when the judiciary declared unlawful the sacking the chief justice of Pakistan by Gen Musharraf, there was great jubilation – a renewed hope in Pakistan for an independent judiciary not subservient to the military hierarchy. The retaliation by Gen Musharraf, through imposition of a virtual martial law on November 3, 2007, was declared unconstitutional by a seven-member bench of the apex court. In the history of Pakistan, it was the first courageous act on the part of the judiciary – disapproval of repeated subversions of the constitution by the men in uniform.
The recent decisions of the apex court to bring mighty people to accountability have bewildered and baffled many. They could not expect such courage from the judges. Such defiance was least expected from judges who once approved Musharraf’s rule, going to the extent of giving him the right to amend the constitution. It was clear from the very beginning that Musharraf would not abdicate power at any cost. Benazir Bhutto led all the political forces to exert pressure on the establishment – using the lawyers’ movement – to transfer power to civilians. Her heroic struggle forced Musharraf and his lackeys to hold elections. February 18, 2008, shattered all hopes of Musharraf and his party to retain control over power. (What a tragedy that leading men of the “king’s party” are now sitting with Asif Zardari.)
Behind the bizarre episodes of March 9, 2007, November 3, 2007, and February 25, 2009, there lurks a continuous struggle between the proponents of cronyism and advocates of rule of law. There are those who want to subjugate their own people, deny them human rights and ensure that there is no room for judicial activism in this society as a means to empowering the people. This is why the higher judiciary poses a great threat to them. They cannot afford a judiciary that challenges their monopoly and hegemony for obvious vested interests. And then there are those who advocate rule of law and argue that dispensation of justice through an independent and efficient judiciary alone can establish democracy, a responsible government and an equitable social order.
However, the courts are meant to interpret the law, whereas enforcing the will of people and countering any form of authoritarianism is always a political question that cannot be resolved in the courts. Since civilian and military leaderships have failed in the past on this account, the entire society is facing the devastating effects of perpetual undemocratic rule-military and civilian alike. The main cause of our present-day socio-political and economic chaos is ineffectual leadership, existence of inefficient, corrupt and repressive institutions, which are anti-people, thus least concerned with the welfare of the common man.
In a democratic setup, the electoral process ensures dominance of the people over those who hold political office. In Pakistan, the forces of status quo want to determine it through force. Earlier, Musharraf and his associates challenged elected leaders on their promise of reinstatement of judges, and later Zardari and company assumed the same role till the time the masses forced them to act otherwise – there is still demonstration of an undemocratic mindset and disrespect for people’s mandate from men who violated Article 6 of the constitution and got endorsement from judiciary and later on indemnity from parliament.
The usurpers portrayed themselves as saviours of the nation, whereas the reality is that under their rule the people of this country lost their lives in suicide bombings, were deprived of basic needs and sufficient food, to say nothing of the fundamental rights of free healthcare and educational facilities, and dispensation of justice, things which are only possible under a true democratic structure. Unfortunately, the attitude of the so-called civilian rulers is not much different from that of military dictators. Every dictator – military or civilian – desires to perpetuate his rule, proclaiming himself as the saviour of the nation and in this process destroys the very fabric of national cohesion. This is what is happening now in the present government – Supreme Court-army impasse.
The constitution of a country is a living and vibrant document that determines the future direction of a nation, provided there is respect for the document and for rule of law. It is high time that people in the next elections elect persons that are capable of working for the supremacy of the constitution and rule of law.
We need a new Pakistan where parliament is sovereign, where the people of Pakistan are truly represented. To attain this goal, the masses will have to demonstrate determination and unity. Pro-democratic forces, with the people’s strong support behind them, must wage an all-out war for establishment of a representative and responsible rule, completely independent judiciary, responsible media playing positive role for vigorous accountability, socio-economic growth and justice for all. Strict action should be taken against persons indulging in high treason under Article 6, and their abettors. This action alone can ensure democracy, rule of law and constitutionalism in Pakistan. All the organs of the state must remember that it is always the constitution that represents the will of the people, and not the legislature. It is a wrong notion that parliament is above everything and all other organs are subservient to its will.
The legislature, in fact, exercises delegated powers given by the mandate of the people within the framework of the constitution. The document should not be allowed to be distorted or mutilated by the elected representatives, let alone by any individual grabbing power through unconstitutional means. The judiciary should be the custodian of the constitution and must never in future condone its violation, subversion or mutilation, at any cost by any individual, the parliament, the executive or the generals.
The writers are lawyers and visiting professors at the Lahore University of Management Sciences (LUMS). Emails: huzaima@huzaima ikram.com, ikram@huzaimaikram.com
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