Since its inception, Pakistan faced a daunting challenge of establishing true democratic polity based on constitutional supremacy, rule of law and equity. Long military rules and in between experiments of "controlled democracy" denied the people of Pakistan their sovereign right of self-governance, for which many lost their lives and many their honour, to secure independence from the British raj. The dictatorial rules muzzled all the State organs-especially judiciary that became an approving arm for many unconstitutional rules. However, the defiance demonstrated on March 9, 2007 was a starting point that culminated in liberating this organ on March 16, 2009. The apex court has since then passed many judgements, especially the verdict in Asghar Khan's case [Human rights case No 19 of 1996], atoning its past, but its decisions have been openly defied by those in power though they keep on championing the cause of democracy!
Since 2009, the Supreme Court has taken up many cases, using its suo muto powers, causing hysteria in many circles. There has been severe criticism from many quarters, especially those in power, that judiciary is "transgressing its constitutionally-defined limits". In the Panama case, this was the main thrust of all the three lawyers who represented the First Family. Unfortunately, political polarization has diluted the valiant common struggle waged by all segments of society, most notably by lawyers, media, social and political activists, for restoration of an independent judiciary. People are not getting their fundamental rights and the higher judiciary is acting proactively. There is a need for implementing rule of law and good governance-these alone can put an end to judicial activism.
Our history is marred by anti-people and autocratic rules-both military and civilian alike. The Asghar Khan case has revealed the sordid events-how the mighty tried to ignore and distort people's mandate. This was and still remains the main factor behind our failure to establish a democratic polity. The role of judiciary in validating coups d'état is lamentable as well. Like all other institutions, judiciary in the post-independence period, suffered due to weak democratic traditions, fight between economic vested interests, rivalry of influential politicians and bitter power struggle between the landowner cliques and civil-military bureaucracy.
Tragically, when State corporations like Railways, PIA and Pakistan Steel were-and still are-wrought with corruption and were on the brink of collapse, there came revelations in the Asghar Khan case that identified the faces responsible for undermining the entire political system. Supreme Court played its part but then politicians and institutions failed to bring them to justice! It was admitted that huge money was released by a bank for political purposes. It is yet to be proved how much was given to politicians and how much was embezzled for self-aggrandizement. How many people minted money in the name of 'national interest' can be anyone's wild guess but the episode as narrated in Supreme Court's judgement in the Asghar Khan case exposed the very fragility of entire system where rule of law was flouted with impunity.
As "press and nation rise and fall together", the same is true for judiciary. It is true that no organ of the State works in isolation from socio-economic-political conditions, but it is also a fact that the present-day Supreme Court has resisted external pressures, including the street power. It is now delivering decisions within the boundaries of law. This is a very heartening trend as once higher judiciary becomes independent and fair, the mighty sections become fearful to flout laws, and adventurists refrain from thinking to take supra-constitutional steps to disrupt the democratic process.
For judiciary, November 3, 2007 was the beginning of a new era. A dictator imposed judiciary-specific martial law-this time the victims were not politicians but the judges. For the first time, it was an issue of survival for those who always sided with men in uniform against politicians. Restoring status quo ante existing on November 2, 2007-reversing unlawful acts of General Pervez Musharraf-was done in the wake of insurmountable public pressure. The post-March 16, 2009 scenario-judiciary versus government-was created by forces that wanted to undermine the democracy but they failed. The effectiveness of people's power that reigned from March 9, 2007 to July 20, 2007, from November 3, 2007 to March 16, 2009-culminated in the second restitution of the Chief Justice of Pakistan on March 22, 2009-paved the way for continuation of democracy.
As a nation, we must resolve for supremacy of constitutional supremacy and strict adherence to rule of law. If no action is taken against the violators of laws of land being powerful and possessing money power, then what is the meaning of democracy and rule of people? Kleptocracy in the garb of democracy is as bad as naked military rule. It is time we revive the resolve of founders of Pakistan for a true democratic rule by punishing violators of Article 6 of the Constitution, and all persons, not politicians alone, who have dirtied their hands in any kind of financial scam. This process of accountability should be strictly as per law fulfilling all requirements of Article 10A.
(The writers, lawyers and partners in Huzaima, Ikram & Ijaz, are Adjunct Faculty at Lahore University of Management Sciences)
Copyright Business Recorder, 2017