Analysis: If Constitution is supreme

It is time to correct some historic wrongs of Pakistan's political and Constitutional history, if we really want to move forward to protect the Constitution.

Democracy can neither function nor sustain without both pillars of the state: Parliament and Judiciary. Whether the Constitution is supreme or the Parliament is not the actual debate. The real cause of concern is that both the Parliament and the Judiciary had not been able to protect the Constitution when martial laws were imposed, as the clause that provided protection against it i.e. Article, VI was never invoked.

And here arises an important question: if the Constitution is Supreme, then it could not protect itself in 1977 and 1999? The answer is simple: the Constitution could not protect itself, as those who usurped the power and abrogated the Constitution got protection. From 1958 to 1999, only history repeated itself till 2007 when, for the first time, the Supreme Court refused to give a legal cover, but paid the price for it. It would not have paid the price had the usurpers been tried by it.

While the government claimed Parliament is supreme, it always failed in protecting itself as well as other democratic institutions. It failed in maintaining democratic order and bringing in strong legislation to protect the constitutional order. It also failed because whenever a martial law was imposed, a bunch of politicians joined the king’s party bandwagon. Our politicians and civilian rulers are in the habit of repeating their mistakes for short-term gains, which often resulted in long martial laws.

Whenever a martial law was imposed, it sent packing all the three institutions and brought their own constitution, parliament and judiciary. This is a historic fact as well as a historic wrong. The martial laws always found hand-picked politicians, PCO judges as well legal brains to get them legality. No wonder why no military dictator ever faced a trial, what to talk of punishment. In the past 10, 11 years, judiciary had corrected itself and not only buried the law of necessity but also chances of future martial law. Hope, they will never support a martial law in future.

But, in Nov 2007, it proved itself by refusing to give validity to General Musharraf's emergency. He twice violated the Constitution but was not made accountable. He twice used the PCO judges, something which could not be stopped. So, how anyone could avert such a situation in future?

Independent SC also gave historic judgements like in Judges Case or the NRO case, but failed to do much when it came to the trial of Musharraf under Article 6 of the Constitution, the only clause which protects and makes it a supreme law.

Today, the man (Nawaz) sent packing by Musharraf by removing his elected government, stands disqualified both as prime minister as well as president of his party. However, the man who not only once but twice violated the Constitution, even has his party registered with the Election Commission of Pakistan (ECP), what to talk of trial.

Reassurance from none other than Chief Justice Saqib Nisar himself that he would not be sitting in this chair in case any threat to the system was welcome statement and a sign of hope, but then why political uncertainty is rising and strong perception is developing that one politician and one party is under target. So, one hopes that the Supreme Court will protect the Constitution and take up the issue of Article 6.

It is our dilemma that the only certainty in Pakistan for years has been the uncertainty, which always exists even though the present government was about to complete its five years term. If this happened, it would be second consecutive term of any elected government. The issue of dichotomy of powers among the institutions still remained unresolved because of the interpretation of the Constitution, time and again.

Thus, not only voices of concern from among the government side but also from the opposition and from people like Senate Chairman Raza Rabbani. The path adopted by disqualified prime minister and disqualified president of PML-N, Nawaz Sharif, may be a popular one and draw big crowds, but perhaps, is not the right decision. Sharif now has a difficult choice to make and needs to think above party or personal consideration, if he really wants the PML-N to succeed in polls.

Similarly, it is equally important to dispel the perception that only one leader and one party is under scrutiny, whether it relates to Panama case or the contempt of court. What happened to Swiss accounts, Musharraf trial and Asghar Khan cases?

The recent verdict in Election Act 2017 case declared that a disqualified person can't hold party office and declaring all decisions made by Nawaz Sharif since July 28, 2017 as illegal raised serious questions. On the contrary, superior court always provide protection. It would be interesting to see the fate of Senate elections and by-elections held after July 28.

One was expecting that things would start moving in the right direction and bringing stability and certainty about abolishing Article 58-2(B) of the Constitution, which had sent three elected governments packing within two or three years. But, it did not happen and, on the contrary, two prime ministers -- Yusuf Raza Gilani and Nawaz Sharif -- were sent packing before completing their terms through judicial orders. Sharif has now been disqualified to hold the party office as well.

It is a historical fact that had judiciary not given legality to 1977 martial law and 1999 military coup, Pakistan's would have much better political atmosphere.

The Constitution is supreme and supposed to be supreme as all functions of the state are supposed to run under the Constitution, including the Parliament. But, it is also true that the author of this supreme law, is the Parliament, comprising politicians and technocrats. So, the author also has the right to amend the Constitution or even re-write it, subject to judicial review.

All this made the superior Judiciary, the real protectors, of the Constitution, and the Parliament always had high expectations from the judiciary to protect the Constitution. Pakistan cannot afford another Constitutional or political crisis. Pakistan cannot afford an extra Constitutional rule and the country cannot afford any revival of law of necessity.

When cracks start appearing in the pillars of the state due to any conflict, it often threatens the system. The possible consequences of such conflicts are dangerous, if it turns into confrontation, something which now looked imminent. However, it is hoped that better sense will prevail.

The writer is the senior columnist and analyst of GEO, The News and Jang

Twitter: @MazharAbbasGEO