Birthpangs of change by Inayatullah

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:


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