Pakistan, even after 70 years of existence, is facing multiple challenges and the most recent one that has divided the nation is the case for disqualification of third time elected Prime Minister. The forthcoming decision of Supreme Court in the light of report of six-member Joint Investigation Team (JIT) will have far-reaching impact on the future polity that many believe is still subtly controlled by the military.
Since its inception, Pakistan faced a daunting challenge of establishing true democratic polity based on supremacy of rule of law. Long military rules and in between experiments of “controlled democracy” have denied the people of Pakistan their right of self-governance.
Democracy has failed to succeed because our elites are not ready to accept rule of law and think they are immune from accountability
The dictatorial rules of military and civilian governments alike muzzled all state organs — especially judiciary that became an approving arm for unconstitutional impositions. However, the defiance demonstrated on March 9, 2007 proved a starting point for rebirth of an empowered judiciary. Since March 16, 2009, the Supreme Court passed many bold judgements; including the verdict in Asghar Khan’s case. Unfortunately, the powerful men in khaki and the corrupt ones in mufti defied with impunity decisions against them and accountability of the powerful remains an unfulfilled dream in our democratic milieu.
Since 2009, the Supreme Court has taken up many cases of public interest for enforcement of fundamental rights under article 184 (3) of the constitution, mostly using its suo moto powers. This has caused panic and hysteria in corridors of powers. There has been severe criticism from those in power that judiciary is “transgressing its limits”.
Democracy has failed to succeed because our elites are not ready to accept rule of law and think they are immune from accountability. The movement for independent judiciary started by lawyers and supported by all political parties, media, social and political activists lost its core objective due to extreme polarisations after the restored judiciary started acting against those who considered themselves to be its ‘restorers’. The judges of that time started preferring political cases to those concerning fundamental rights of the masses.
Our history is marred by anti-people and autocratic rules under military and civilian regimes. Asghar Khan’s case revealed sordid events — how the mighty tried to ignore and distort people’s mandate. This was and still remains the main factor behind our failure to establish a true democratic polity. The role of judiciary in validating coups d’état is lamentable but the culture of boot-licking on the part of politicians and changing loyalties overnight is equally deplorable.
The remedy for all our ills lies in comprehensive reforms to ensure that institutions work strictly within their defined legal limits without any external influence. Rulers, in the wake of JIT’s report, are remembering Asghar Khans case. Why did they not take any action against the faces identified for undermining the political system? Obviously, their own hands are dirty. Supreme Court in Asghar Khan’s case played its part but the then politicians failed to bring the culprits to justice. Parliament never asked how many people minted money in the name of ‘national interest’. Those who blame the military and keep on lamenting about the fragility of the system should stand up for the rule of law, but they will not, because they themselves violate it with impunity.
No organ of the state works in isolation. It cannot remain aloof from prevailing political and socio-economic-political conditions. Supreme Court has so far resisted external pressures, including street power. For any democratic setup, it is a very heartening—once higher judiciary becomes independent and fair, the mighty sections become fearful of flouting laws, and adventurists refrain from taking extra-constitutional steps to disrupt the democratic process.
In the initial days after restitution of judiciary, there was a 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 and Others v Federation of Pakistan and Others, PLD 2010 SC 1, but also asked the government to revive matters in alleged stashing of funds in Switzerland. Refusal to do so on the basis of Article 248(2) resulted in the indictment and punishment of Yousaf Raza Gilani for contempt. Such a scenario can emerge in Panama case if Nawaz Sharif et al keep on maligning the judiciary rather than accepting the rule of law.
As a nation, we must resolve for constitutional supremacy and strict adherence to rule of law. If no action is taken against the violators of laws of land for being powerful and possessing money power or stick in their hands (Musharraf et al), then what is the meaning of democracy and rule of people?
The process of accountability should be strictly as per law, fulfilling all requirements of article 10-A. No one, including judges, should be treated as sacred cows in this renewed enthusiasm of purging the polity and institutions from the black sheep. If this is done, there will be no room for street agitations.
The writer is Advocate Supreme Court and Adjunct Faculty at Lahore University of Management Sciences (LUMS).
Published in Daily Times, July 16th , 2017.