Yet again the spectre of General Ziaul Haq is looming large across the land of the pure as the apex court in its sovereign prerogative continues to interpret the still-mutilated 1973 constitution – perhaps on the ‘ground rule’ of ‘morality’. Certainly, the immoral cannot be mixed with the undiluted moral.
Before the general elections, if they are at all held, the Senate elections have been hit with a crisis of legitimacy with the disenfranchisement of the major party of the country, the Pakistan Muslim League-Nawaz. As a result, the gates of horse-trading for seats in the prestigious federal representative Upper House’s elections have been widely opened. With Nawaz Sharif’s name being tainted under Article 62-1-f for not being “sagacious, righteous and non-profligate and honest and ameen”, the PML-N’s nominees and members of assemblies have been condemned to become freelancers.
The Senate is the supreme institution of the federation and has earned great prestige for its meticulous legislative business and policy interventions. But it has been subjected to this sordid fate because of a ‘minus-one’ mortal being. As Article 17 of the constitution is being read in light of articles 62 and 63 – and with the Objectives Resolution having been made a substantive part of the constitution by Gen Zia – deposed prime minister Nawaz Sharif has also been declared ineligible to head a party. If this logic is extended further, how can the party name carry his initial? How can he remain even a member of the party or “form an association or union” or even vote? The matter is, however, far more crucial than a person; it extends to a whole range of fundamental rights, constitutional rule, role of various institutions and sovereignty.
Since our successful agitation against Gen Musharraf’s emergency rule, and for the restoration of an independent judiciary, we have been witnessing a hyper-active judiciary – with the exception of the moderate periods of CJs Justice Jilani and Justice Jamali. After it’s restoration through our street agitation, the apex court in its unrestrained prerogative to interpret the constitution and almost infinite suo-motu powers has been at liberty to intervene in the matters of the legislature and the civilian part of the executive. The constitutional logic for that revolved around the concepts of ‘trichotomy of power’ and the ‘basic structure of the constitution’, which remains ambiguous even though the framers of the constitution had clearly perceived that sovereignty belongs to the people of Pakistan to be exercised by their elected representatives.
As a compromise between the religious and secular parties, the Objectives Resolution was not made an operative part of the constitution. Despite a very contradictory jurisprudence, the superior judiciary’s overall persistent view has been as such: the power structure is dichotomous, which entails separation of powers; being a law-making body parliament is supreme, but the constitution may override its own maker; and, ultimately, the constitution means what is the discretion of their Lordships ie, the judiciary is supreme as only it knows the letter and/or spirit of the constitution.
There was great optimism after the passage of the 1973 constitution that the people of this country would be sovereign in determining their destiny the way they wanted through their free will to be exercised by their unbridled right to franchise. But, unfortunately, this was not to be. Despite Article 6, three subversions to the constitution took place and martial rule was self-servingly justified under the ‘Doctrine of Necessity’ by the Supreme Court of Pakistan. Trichotomy of power was subsumed by the monolithic power of chief martial law administrators, separation of power became a dead letter with the rubber stamp of a PCO-judiciary and those demanding their fundamental rights were subjected to crimes against humanity.
Even if direct military rule gave way to brief democratic intermissions, Gen Zia’s Article 58-2(b) empowered Pakistani presidents to send packing elected assemblies and governments. The ouster of government was usually done at the behest of, or in collaboration with, the then army chiefs – with the exception of Gen Kakar; and the Supreme Court justified three out of four dissolutions of assemblies.
One had thought that after the removal of Article 58-2(b) and passage of the 18th Amendment the era of autocratic removal of elected governments and assemblies was a thing of the past.
But with the exit of Gen Musharraf, who was allowed to get away scot-free, a new struggle started among various institutions of the state for their share in the post-martial-rule quasi-democratic dispensation. The security apparatus was adamant to continue their hegemony; and the judiciary got into a tug of war with the civilian part of the executive and the legislature to have a greater say, beyond its customary judicial domain.
As we see clear polarisation between elected and non-elected institutions and an ongoing power struggle between the de-facto and de-jure power structures, a debate is taking place among various jurists about the basic structure of the constitution. Since parliament is close to the end of its tenure and politicians are at each other’s throats, it cannot make effective legislative intervention – particularly after what happened to the ruling PML-N before the Senate elections in Balochistan and its disenfranchisement as a party to participate in them. As opposed to the retrospective validation of acts of military dictators, and even the decisions of the Justice Dogar-led PCO-II Supreme Court, the doctrine of past and closed transaction was dispensed with to delegitimise the allocation of party tickets by the party head of the PML-N.
We believe the honourable chief justice when he says that he “has no political ambitions or agenda to follow”. But, with due respect and veneration, we observe the most destabilising political consequences of some of the much-debated judgments against the former prime minister on the overall democratic transition in the country. The ‘minus-one’ theory is almost close to fruition with the ouster of Nawaz from both office of the PM and of party leader.
What is more disturbing is that fundamental rights are now being judged on the morality rule – as Gen Zia had envisaged for his own political objectives. We do need a strong and independent judiciary to protect citizens’ fundamental rights against the excesses of the all arms of the executive, and a judiciary that keeps the due process of law and justice, without either encroaching into the domain of representative institutions or indulging in the power games of the powers that be.
We painfully watch our citizens ‘disappearing’ as the judiciary is able to do precious little in this regard. Strange are the times in the reign of morality, when morality cannot be said to be soaring very high.
The writer is a senior journalist. Email: imtiaz.safmagmail.com