It’s strange but is true. Even after the constitution of 1973 was enforced, if we go through the writings, be they are Leftist or Rightist, there is talk of government, society, politics, and such things, but no mention of the constitution, its provisions could be found in the intellectual / political discourse of the country.
I shall share some of such samples later.
For now, here are some thoughts on what are the pre-requisites of a constitutional rule in Pakistan:
Pre-requisites of constitutional rule in Pakistan
(1) Any person who abrogates or attempts or conspires to abrogate, subverts or attempts or conspires to subvert the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason. (2) Any person aiding or abetting the acts mentioned in clause (1) shall likewise be guilty of high treason.
[The Constitution of Pakistan]
It was as bad as it could be that for the first 25 years Pakistan struggled hard to have a constitution and failed repeatedly. But it’s worse than that that despite having a constitution it remains constitutionally orphaned. No need to go into the details of the recent history of 35 years of military and civil regimes, since it’s all clear by itself how the governments of the people, Islamist Generals, and then young politicians, Benazir Bhutto and Nawaz Sharif, on this or that pretext manipulated the constitution to fulfill their personal, ideological, sectarian, party and elitist agendas.
However, it is heartening that we have that constitution still intact and living in our midst. In spite of many an attack and all new devices to render it meaningless, it still keeps us together and woven and believing in it. After General Musharraf’s most dangerous attempt of November 3 (2007), to transform it into a jelly-constitution, the most devastating attack came from the so-called peacenik Taliban, Tehreek-e-Nifaz-e-Shariat-e-Muhammadi. That seems to have been repulsed.
Another fortune we came to win by sheer ‘hard-work’, is our non-dependent judiciary. This March 16, it was just like saving the prey from the jaws of the beast when the Pakistan Peoples Party had to restore the deposed judges. It needs to be kept as the dearest gain by the people in addition to the constitution. Both of these entities, the constitution and non-dependent judiciary are inseparably and in the present context symbolically related. It was for the sanctity of the constitution that lawyers and civil society waged the struggle for the restoration of the deposed judges and especially the Chief Justice Iftikhar Muhammad Chaudhry. Their restoration meant and stood for the restoration of the constitution.
Now that we have the custodian of the constitution finally free from the shackles of the executive, legislature and Pakistan Army, we are in the right in expecting the blessings of constitutional rule for the people of Pakistan. However, it is incumbent that pre-requisites of such rule be urgently fulfilled. As mentioned above, two of the pre-requisites are already in place, others are still in the air and need to be solidified and implemented as early as possible.
One such pre-requisite, and probably an indispensable one, is that a virtual constitutional rule be provided for in Pakistan since the date the 1973 constitution came in force. This must be done strictly in accordance with the provisions of the constitution both in letter and spirit and without any let it go. Though the parliament is duty bound to set out on such a journey into the last 35 years’ unconstitutionalities, but as it is the “parliamentary system” itself that is gnawing everything constitutional in Pakistan, we cannot hope for a single step into this direction from the present parliament. It is in such a vacuum that the argument in support of judicial activism finds itself duly entrenched. The last two years’ events have amply shown that it is the judiciary that can take up the cause of the people who had been abandoned by all those who had/have anything to do with the state and governments in Pakistan.
This virtual constitutional rule should begin from the time of Pakistan Peoples Party’s government and reach General Musharraf’s regime and his present civilian prototypes via General Zia-ul-Haq’s rule and the visiting civilian governments of Benazir Bhutto and Nawaz Sharif. This virtual constitutional rule needs to be as merciless as the trial and execution of Zulafiar Ali Bhutto was and as the throwing off and trial of Nawaz Shairf was.
As the constitution is always a living document and ours has in the form of high treason article its own mechanism to protect itself, what is needed is just a push that will set the process of virtual constitutional rule rolling. It will take care of everything else. Sure, it should settle all the scores with all those who tried to play and played with the provisions of the constitution in any manner as the main culprits or as its abettors.
In order to prove that it is the true custodian of the constitution of Pakistan, the non-dependent judiciary has both moral and constitutional obligation to put the sanctity of the constitution on top of its agenda leaving everything aside and abandoning everything behind that calls for caution and expediency. It is time to do the job.
Also, another pre-requisite demands that all the constitutionally created institutions, offices and agencies be put in their due places. They must be tried, punished, checked, forewarned, reminded and made to work within their legal and constitutional limits. Zero toleration must be shown to any deviation from the dictates of the constitution. Don’t we need now after more than 60 years of military and civilian dictatorships finally a dictatorship of the constitution?
The time is ripe for such a virtual journey that will straighten not only the things past but the things for our future also. At this critical moment, when the Pakistani elites are caught in a trap of their own misdoings, and are clearing the mess created by their own dirty politics, we should keep our eyes on a vision for the longer term. We should not be distracted by their focus on the sequel of their policies such as helping the millions of persons displaced from their homes and hometowns. That is all misleading. In addition to helping the IDPs, the virtual constitutional rule must focus on finding the causes of this mayhem: who caused this and how. Those responsible must be brought to book and punished accordingly.
If the courts, lawyers, civil society and awakened people do not help this virtual constitutional rule set roll, nothing will ever be gained and no lessons will ever be learned. The gravest misdoings of the elites of Pakistan will go unpunished and culprits will keep on ruling the people scot-free as has been happening throughout the last six decades. This fate must be changed once and for all. Be it clear that the moral force and the resolve of the people that helped restore the deposed judges are still alive. Another daring act like that of March 9 (2007) is the need of the hour.
[This article was completed on June 8, 2009.]