Huzaima Bukhari & Dr. Ikramul Haq
Events since March 9, 2007—Day of Defiance in judicial history—represent struggle for rule of law and constitutionalism. On July 20, 2007 when the judiciary declared unlawful action of sacking Chief Justice of Pakistan by General Musharraf, there was great jubilation—a renewed hope in Pakistan for an independent judiciary not subservient to military hierarchy. The retaliation by General Musharraf through imposing Martial law on November 3, 2007 was declared as unconstitutional by a seven-member bench of the apex court. In the history of Pakistan, it was the first courageous act on the part of judiciary—disapproving repeated subversions of the Constitution by men in uniform.
The military complex was both bewildered and baffled. Such defiance was least expected from judges approving Musharraf’s rule, going to the extent of giving him the right to amend the Constitution. As usual, General Musharraf and his team (which included many who are now posing to be champions of democracy) employed the notorious policy of ‘Divide and Rule’—he secured endorsement of his unconstitutional actions from his puppet parliament (sic) and judiciary through the auspices of pro-establishment judges.
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. She paid the price with her life but her heroic struggle forced Musharraf and his lackeys to hold elections. February 18, 2008 shattered all hopes of the King and his party to retain control over power (what a tragedy in history that leading men of King’s party are now sitting with Asif Zardari).
The Neo-Colonialists, as confirmed by Condoleezza Rice in her book No Higher Honor, forced General Musharraf to promulgate the infamous National Reconciliation Ordinance (NRO) in the late hours of October 5, 2007 just a few hours before the presidential elections. The Prime Minister Yousaf Raza Gilani in his speech before the Parliament on January 16, 2011, the day he received contempt of court notice from the apex court, legitimately rightly raised the issue why the framers of NRO were looming free and elected representatives were being punished for something they did not enact. The NRO was ploy of Neo-Colonialists who decided to dump Musharraf and control Pakistan by installing their puppets in PPP as “rulers” (sic). What happened thereafter is obvious. The government violated rule of law, gave the men in khaki extensions, created confrontations with judiciary and above all set new records of bad governance and corruption. But their gravest crime is not prosecuting General Musharraf who destroyed all the institutions.
Failure of government and more importantly that of the Parliament to punish the imposer of emergency on November 3, 2007 for his acts of subversion of Constitution, removing judges and detaining them along with their families, weakened the civilian rule from its inception. After nearly four years since March 9, 2007, we are still struggling for revival of constitutionalism—now the government is openly defying orders of the Supreme Court to defend a law that it earlier conceded was indefencible. It is also for the government to punish those who framed NRO and subverted Constitution on many occasions rather than blaming the apex court for selective justice.
November 3, 2007 was certainly a disgraceful day, but what is happening now is equally condemnable. Where is the respect of people’s will? Have they elected the PPP and its allies to behave in the manner they have demonstrated of late? Judiciary acted boldly for the first time on July, 20 2007 and November 3, 2007 (may be in its own interest as alleged by the PPP stalwarts), but the Parliament did not even pass a resolution for punishing the worst offender of the supreme law of the land.
What was behind the bizarre episodes of March 9, 2007, November 3, 2007 and February 18, 2009, obviously, a tussle between the proponents of cronyism and advocates of rule of law? The cronies, ruling for the last four years, have done everything to destroy State institutions and deny the masses their fundamental rights. In the face of this grim reality, judicial activism threatens rule of the corrupt. 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. Courts are meant to interpret the law, whereas enforcing the will of people and countering any despotic and undemocratic 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.
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 the corrupt and incompetents rule, there can neither be democracy nor constitution. It is high time that people in next elections elect such persons that are capable of working 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 challenged elected leaders on their promise of reinstatement of judges. Presently, Zardari and company have assumed the same role—this confirms dominance of undemocratic 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. This is what is exactly happening now in the present government-supreme court-army impasse.
It is now for the masses to resist the undemocratic mind set and struggle for real democracy. Pakistan can never progress unless parliamentarians work for the supremacy of the constitution in the country and all the state organs discharge their functions within strict parameters and powers laid down in the supreme law of the land. The only way to sustain democracy is by establishing responsible government and protecting the rights of masses guaranteed under 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 where 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.
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The writers, authors of many books, are Visiting Professors at Lahore University of Management Sciences (LUMS).
