Huzaima Bukhari & Dr. Ikramul Haq
March 9, 2007—Day of Defiance— will always be remembered as an historic occurrence in the annals of our country. Events which followed that day, however, can best be termed as nothing but chaotic and disturbing. The struggle for rule of law and constitutionalism in the wake of March 9, 2007 is still going on between the forces of change and defenders of status quo, trying to defeat each other with full vigour. On July 20, 2007 (another historic day when the judiciary declared action of sacking Chief Justice of Pakistan by Musharraf as unlawful) the restoration of Muhammad Iftikhar Chaudhry ushered in a wave of renewed hope in Pakistan for an independent judiciary. As expected, the forces that were hard hit by this restoration retaliated by imposing Martial law on November 3, 2007. But this time, a seven-member bench of the apex court declared this move as unconstitutional. In the history of Pakistan, it was the first most courageous action on the part of our judiciary—disapproving repeated subversion of the Constitution by men in uniform.
The establishment was bewildered and baffled. It could not expect such defiance from its own hand-picked judges. As usual, they employed the notorious Colonial policy of ‘Divide and Rule’ and managed to perpetuate its unlawful rule by getting endorsement of its unconstitutional actions from the puppet parliament (sic) and through pro-establishment judges. Shaheed Mohtarma Benazir Bhutto led all the political forces to exert pressure—using the lawyers’ movement—on the establishment to abdicate power and transfer it to civilians. This cost her, her own life. But her heroic struggle forced Musharraf to leave military post and hold elections. February 18, 2008 shattered all hopes of the King and his party to retain control over power. The establishment—on the behest of neo-colonial masters—decided to dump Musharraf and preserve status quo by hijacking Pakistan Peoples Party (PPP). Nawaz Sharif, oblivious of this Great Game, on March 10, 2008 signed the Murree Declaration with Asif Zardari, who later cheated him, but not before got himself elected as president. Few could comprehend and realise at that point of time that the establishment had decided to get back lost control through the auspices of Zardari.
We warned Nawaz and others well in time—much before the first session of National Assembly called by Musharraf on March 17, 2008. We suggested that soon after taking oath and formation of coalition government, the new parliament should table the following bills:
1. Bill for National Reconciliation Act 2008 (NRA)
In National Reconciliation Ordinance 2007 (NRO), 2007), Musharraf intentionally excluded cases registered after 12 October 1999 for ulterior motives to exclude Nawaz and Shahbaz Sharif. In order to create a genuine atmosphere of national reconciliation and put an end to political victimization, this new Act should be passed removing time-specific and person-specific provisions in NRO, 2007 extending its scope to all persons and also provisions in direct conflict with Constitution.
2. Bill for ‘Oath of Judges, Act, 2008’ (invalidating Oath of Office (Judges) Order 2007)
By Passing this Act, the National Assembly could pave the way for reinstatement of 2nd November 2007 Judiciary and nullify the judgement of apex court in the case of Tika Iqbal Muhammad Khan v General Pervez Musharraf and 2 others (PLD 2008 Supreme Court 6) holding that judges who were not given or refused to take oath under the Oath of Office (Judges) Order 2007 cease to be judges. With the passing of this Act, no judge in future could be removed through any executive order or through any law related to oath of judges.
3. Bill for ‘High Treason Act 1973 (Amendment Act 2008).
The National Assembly should amend High Treason Act, 1973 to the effect that in case of violation of Article 6 of Constitution, it would be incumbent upon the apex court to take immediate cognizance and direct the Attorney General of Pakistan to initiate trial of offender. Thus in future the apex court instead of validating violation of Article 6 would be legally obliged to punish the offenders.
Alas, as expected, our suggestions were ignored by all! What happened thereafter is obvious. Had the parliament sent a clear message to the imposer of emergency on November 3, 2007 to face trial for subversion of Constitution, removing judges and detaining them and their families, today Zardari would not have had the courage to impose Governor Raj in Punjab. Two years after March 9, 2007, we are still struggling for revival of constitutionalism. The intended Long March starting on March 12, 2009 leading to Dharna (sit-in) on Constitutional Avenue of Islamabad on March 16, 2009 is going to give a new excuse to the establishment to roll back the democratic political process. The game is well-planned, but our politicians appear in no mood to reconcile and foil this ugly design. On the contrary they are conveniently playing in the hands of Hidden Forces.
November 3, 2007 has proved to be a disgraceful day for our country. The ill-effects of that day’s event are still looming large despite the fact that people of Pakistan have given a loud and clear verdict against forces of status quo. It is the people’s will and power alone that can compel the usurper of power to renounce unlawful rule—as the lawyers’ ongoing movement in Pakistan has proved. Nowhere in the world has this task ever been performed by the judiciary. It is basically a political question and not a legal issue. Even if judiciary declares any coups detat illegal, how can it force the usurper to abdicate power? Judiciary itself has no power (physical) to get its orders implemented by force! The responsibility for failure of political leadership in Pakistan to counter intervention of civil-military bureaucracy cannot be shifted to the judiciary (though some individual judges have sided with usurpers). The result of lack of political wisdom of Pakistani leaders has been obvious—complete subservience before dictators, military or civil, hardly matters.
In the past, majority of the politicians, instead of leading the people and placing full faith in them, rather opted to win favours of the mighty in turn for unprecedented benefits. The same process continues in post-2008 election period. Political leadership is still treading on the old path and remains unwilling to work collectively for a sustainable democracy.
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. Pro-establishment forces, even in the wake of elections of 18th February 2008 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 empower the people. This is why Chaudhry Iftikhar and other independent judges are a great threat to them. They cannot afford independence of judiciary for obvious vested interests. The advocates of rule of law rightly argue that dispensation of justice through an independent and efficient judiciary alone can establish democracy, a responsible government and an equitable social order.
It is now the sole responsibility of democratic forces to galvanize and mobilize people to counter any extra-constitutional move by any present or prospective ruler. Courts are meant to interpret the law, whereas enforcing the will of people and countering any despotic rule is always a political question that cannot be resolved in the courts. Since our leadership has failed in the past on this account, the entire society is facing devastating effects of perpetual despotic rules—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.
Imposition of Governor Rule in Punjab and ousting of judges, their house arrests and denying them right of free speech and movement are interrelated and should not be analysed in isolation. It shows that establishment still controls all the institutions—including the office of president. Even after 62 years of existence, we have miserably failed to abide by constitutional rule and democratic norms. At the heart of the concept of democracy is the assurance for the citizens that their affairs are going to be managed by a ‘Responsible Government’.
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. In a country where establishment controls all institutions, there can neither be democracy nor constitution. It is high time that the parliament should work for the supremacy of constitution and rule of law. In a democratic set-up, the electoral process ensures dominance of the people over those who hold political offices. In Pakistan, forces of status quo want to determine it through a president lacking support of the masses. This brand of ‘democracy’ is unknown to the students of constitutional law anywhere in the world. One wonders what useful purpose this unjust and unlawful process can yield! It is only bound to frustrate the verdict of people, forcing them to believe that the entire electoral process was just a farce. Earlier, Musharraf and his associates were challenging elected leaders on their promise of reinstatement of judges. Now Zardari has assumed the same role—this confirms dominance of establishment, its mind set and disrespect for people’s mandate.
Pervez Musharraf has portrayed himself In the Line of Fire as a great saviour of the nation, whereas the reality is that under his rule, the people of this country lost their lives in suicide bombings, deprived of basic needs and sufficient food what to talk of fundamental rights of access to free health and educational facilities, and dispensation of justice, things which are only possible under a true democratic structure. Attitude of Zardari and his cronies is not much different from any other dictator. Every dictator desires to perpetuate his unlawful rule proclaiming himself as the saviour of the nation and in this process destroys the very fabric of national cohesion.
It is now for the masses to resist the establishment and work for real democracy. Parliamentarians should work for the supremacy of the constitution in the country and all the state organs must discharge their functions within strict parameters and powers laid down in the supreme law of the land. This is the only way to sustain democracy, establish responsible government and protect the rights of masses guaranteed in the Constitution. Legislature is sovereign but the supremacy of constitution is above everything— legislators in fact exercise delegated powers given by the people within the framework of the Constitution. We need a new Pakistan where parliament is sovereign within which, the people of Pakistan are truly represented. To attain this goal, 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 establishing a representative and responsible rule, completely independent judiciary, responsible media playing positive role for vigorous accountability, socio-economic growth and justice for all.
———————————————
The writers, legal historians and authors of many books, are Visiting Professors at Lahore University of Management Sciences (LUMS).
