Daily Times

The Lahore Resolution of March 23, 1940, widely believed to have paved the way for a separate homeland for the Muslims of India on the basis of “two-nation” theory, received a jolt in 1971 when Bengalis claimed separate state-present day Bangladesh. Many historians, academicians and political analysts say that even after existence of seven decades, the Constitutions of Pakistan lacks clarity about nation’s true identity. Religious over-zealots and forces of obscurantism keep on saying that the country was created in the name of ‘Islam’-though multiple theological schools have serious differences and disputes on basic concepts. In the name of religion, they advocate enforcement of “Sharia” laws, though when asked to draft codes, sectarian connotations shun any unified text!

The ethnic identities-Punjabis, Pashtuns, Sindhis, Siddis, Saraikis, Muhajirs, Baloch, Hindkowans , Chitralis, Gujaratis and many more-are historic realities but are asked by clergy to say: “We are first Muslims, then Pakistanis and nothing else”. Resultantly, even any demand for ending economic disparities and/or providing fundamental facilities to residents of backward areas is taken as “threat to national unity”. The religious political parties having no concern/agenda for an egalitarian Pakistan keep on convincing the masses that their demand for equality and equal opportunity should yield to the “divine cause” of keeping them poor. Behind creation of Pakistan, they plead “holy scheme” and this justifies witch-hunting in the name of self-created “Islamic ideology”. This politicization of Islam got credence in the dark era of General Zia and continues till today.

Since its inception, Pakistan faced a daunting challenge of establishing true democratic polity based on constitutional supremacy, rule of law and equity. Long military rules and in between experiments of “controlled democracy” denied the people of Pakistan their sovereign right of self-governance, for which many lost their lives, property and relatives to secure independence from the British raj. The long dictatorial rules muzzled all the State organs-especially judiciary that became an approving arm for many unconstitutional rules till 2007. Even during the Decade of Democracy [2008-18], the judiciary on many occasions blatantly encroached upon the powers of Legislature and Executive. The judicial defiance of March 9, 2007 gave a hope to people but soon it faded away when after restitution on March 16, 2009, the apex court started stifling the Legislature and Executive. The elected representatives were even forced to amend the method of selection of judges of superior courts. Many were disqualified without fair trial guaranteed as fundamental right under Article 10A of the Constitution. Powers under Article 184 read with Article 187 of the Constitution were selectively used-when not suited inordinate delay committed e.g. in Asghar Khan’s case [Human Right Case No. 19 of 1996] and even in belated judgement no direct punishment was awarded!

Since its inception, Pakistan faced a daunting challenge of establishing true democratic polity based on constitutional supremacy, rule of law and equity

From 2009 to 2018, the Supreme Court invoked suo moto powers many times causing hysteria in a lot of circles and in the end nothing worthwhile was achieved except the disqualification of two elected prime ministers and other members and undoing international agreements that later elicited suits of damages against the state of Pakistan. There has been severe criticism from many quarters that judiciary has been “transgressing its constitutionally-defined limits”. In Panama case, this was the main thrust of all the three lawyers who represented the Sharifs.

Unfortunately, political polarisation diluted valiant struggle waged from 2007 to 2009 by all segments of society-lawyers, media, social and political activists-for restoration of an independent judiciary. After restitution of higher judiciary, people were hopeful to get their fundamental rights, but courts failed to enforce the same. They remained busy in fixing the prices of commodities or fees of private schools instead of asking the federal and provincial governments to provide the right of free and compulsory education under Article 25 of the Constitution. Since 2007, little attention is paid to reform the judiciary and ensure rule of law. The much-needed and long-delayed fundamental structural reforms in all spheres-legislature, judiciary and executive-are still awaited.

Military and civilian governments in our history have been marred by anti-people and autocratic attitudes. Asghar Khan’s case is a classic example of unholy alliance of anti-democratic forces-military and civilian-to steal people’s mandate. This remains the main factor behind our failure to establish a true democratic polity. The faces responsible for undermining the political system though identified have not been brought to justice till today! It was admitted that huge money was released though a bank for electoral gerrymandering-not clear how much was given to politicians and how much was embezzled. How many people minted money in the name of ‘national interest’-the entire episode as narrated in Supreme Court’s judgement testifies to flouting the rule of law with impunity. Even no “investigative” journalist exposed this “sensitive” (sic) issue!

As “press and nation rise and fall together”, the same is true for judiciary. It is a fact that no organ of the State works in isolation from socio-economic-political conditions, but it is also true that present-day Supreme Court needs to prove that it is actually free from external pressures and not party to witch-hunting in the name of accountability. To be fair to all and remain within the boundaries of law alone can establish its independence. Once higher judiciary is independent and fair, the mighty sections restrain to flout laws, and adventurists think twice before taking any supra-constitutional step or disrupting the democratic process.

The nation was jubilant when 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 of alleged funds stashed in Switzerland. Alas, since then the Court could not implement this part of order. The refusal to implement the order on resulted in the indictment and punishment of then Premier for contempt. In Panama case as well, the judgement only confined to disqualification of three-times elected Prime Minister. People ask what happened to retrieval of looted money. This question baffles the minds of ordinary citizens.

On March 23, 2019 [79th Pakistan Day], ritualistically, there is reiteration of resolve for supremacy of constitution and strict adherence to rule of law, but nobody is serious to recover the looted wealth of nation and lost taxes. If the state fails to take concrete steps for recovering the funds and spend it for the welfare of common people who are suffering from hunger, unemployment, malnutrition, and deprived of health and education facilities, then what is the meaning of celebrating March 23 as yet another ritual. It is time that we revive the resolve of founders of Pakistan for a true democratic rule by punishing the plunderers of national wealth and violators of Article 6 of the Constitution and all persons, not politicians alone, who have soiled their hands in any kind of financial scam.

The writer is Advocate Supreme Court and Adjunct Faculty at Lahore University of Management Sciences (LUMS)

Published in Daily Times, March 24^th 2019.