Momentous decisions taken by the judiciary and Parliament
over the past five years had changed the country’s political landscape,
said Chief Justice of Pakistan, while speaking at a function in
Abbottabad last week. The supreme judiciary had taken difficult
decisions and Parliament had purged the constitution of provisions
inserted by the dictators, he added.
“The change has come,” pronounced the Chief Justice. But has the change really come?
This is how the Chief Justice sought to establish his proposition:
i
All the players were guilty of violating the constitution, but now the
time has come when constitutionalism would prevail leading to rule of
law.
i Article 5 demands of every citizen to act according to
the law. Now nobody could dare derail the system because the judiciary
was working diligently for the supremacy of law and the
constitution…….if at any stage any attempt was made from any corner
against the will and wishes of people, their resistance and resentment
should be kept in mind.
Yes, the directive to write a letter to
the Swiss court has been implemented. But how and after how many years?
What about a number of other important cases where action hangs fire
and little has been done to act in accordance with the order of the
Supreme Court? To mention a few, cases relating to Steel Mills, the
Railways, NLC, rental companies and local government elections.
We
have, on the one hand, the court verdict stating that the Balochistan
government has forfeited its constitutional authority to rule; and on
the other, a demonstration of defiance in the form of passing of a
confidence motion in favour of the Chief Minister and the existing
government. Here apparently an elected house has asserted its
constitutional prowess. How will the Supreme Court now view this
assertion of authority, which runs counter to its judgement? Which of
the two top national institutions is supreme - the superior judiciary or
Parliament? Parliament represents the will of the people of Pakistan.
The judiciary is the final arbiter and interpreter of the provisions of
the constitution. Parliament can amend the constitution and promulgate
laws to deal with the findings of particular judgements.
There is
also a third party - the army. Constitutionally, it cannot compare or
compete with the overarching position of the superior judiciary and
Parliament. But de facto, it for decades has exercised supreme power and
has established its status as a “political” entity to reckon with.
Along with this gratifying and profitable experience, it has come to
develop a mindset, which rests on the belief that politicians being
corrupt and incompetent should not be entrusted with the vital
responsibility of freely running the affairs of state, especially in
regard to security and foreign affairs. Again while ruling the country,
they had found in the superior judiciary a willing ally. And when they
felt forced by circumstances to halt direct stewardship, a conditional
and circumscribed civilian regime was allowed to take over.
It is
in this context that one may look at the claim of the Chief Justice that
the change has come. No doubt, a process for change has begun - not
only because of the emergence of an independent judiciary, but also
because of the rise of a proactive and assertive media. One may also
refer to the Imran Khan phenomenon, which is bound to have an impact on
the political scene after the forthcoming elections.
General
Kayani’s November 5 critical statement about national issues and views
about the role and limitations of national institutions, as also
President’s Malakwal speech highlight the hurdles that stand in the way
of establishing the rule of law and constitution.
Quite a lot may
depend on how the judgment of the Supreme Court on Asghar Khan’s case
will be complied with. Will the defaulting Generals be treated and
punished and by whom? As for the President, his speech at Malakwal is
obviously a signal of disregard of the judicial verdict.
Essentially,
the question revolves around the change in the mindsets of the military
and the politicians. How far is the Supreme Court justified in issuing
orders, which intrude into the executive domain? On November 15, the CJ
clarified the court’s position by saying that the Supreme Court enjoyed
cross-cutting jurisdiction and has the role of oversight. He said that
the apex court could check any unlawful, unauthorised mala fide act or
exercise of authorities. These observations need to be read in the light
of COAS’ statement that no individual or institution had the monopoly
to decide what was right or wrong in defining the ultimate national
interest. (One may here take notice of a resolution of the District Bar
Association aimed at the military establishment and Sindh High Court’s
order suspending the Interior Minister’s ban on the use of motorcycles
in Karachi.)
An interesting discussion was held the other day on
one of the leading TV channels about the requisites and prospects of the
rule of law in Pakistan. On board were three leading lawyers of the
country. There was consensus that all individuals are equal in the eyes
of law and should be treated as such. In Pakistan, the practice is
otherwise. The powerful and rich violate the law and rules with
impunity. Those wielding the gun, set their own rules and have their own
say. They are intolerant of any challenge to their authority and
status. Some of the recent utterances of senior retired generals come to
mind in this respect. A reference was made to the beating up of a
retired army officer, who had lodged a petition in a court questioning
the grant of extension to the COAS. A minister went to the length of
demanding that the FIA officials be brought in handcuffs before
Parliament for daring to call the sons of a former Prime Minister to
their office. If the people’s representatives deliberately indulge in
unlawful activities, how can there be rule of law? They do not represent
the people of Pakistan. The jagirdars and the industrialists safeguard
their own personal interests. Law, in fact, for them is an obstacle that
they manage to put aside because of their power and influence.
How
will real lasting change come when we will be blessed with rule of
constitution and law. The Supreme Court is making a great contribution.
The CJ’s warning to the usual usurpers of power has substance because of
higher judiciary’s independence and the continuing exposure of
corruption and malpractices of politicians and the bureaucracy. But the
real change will come when the feudal and lawless mindsets undergo
alteration. This will require education of the masses and the rise of
politicians-in-power like the Chief Minister of Bihar, who is currently
visiting Pakistan and telling how he transformed a backward and violent
state in India into a fast-growing and peaceful society. Shahbaz Sharif
is struggling to become a part of the solution. Will Imran Khan win the
political space to bring in the much needed reforms and build the will
and capacity to inject the required change in the thinking and behaviour
of the stakeholders.
The writer is an ex-federal secretary
and ambassador, and political and international relations analyst.
Email: pacade@brain.net.pk