In the wake of the humiliating defeat of King's Party - Pakistan Muslim League (Q) - on 18 February 2008 - despite all State support extended - there transpired a great hope and chance that the mandate given by the people of Pakistan would pave the way for a new era of democratic dispensation in the country - undoing the long, dark and bitter legacy of military or military-controlled rules.
In the beginning, there was a strong awareness of this historic opportunity on the part of the two leading victorious political parties Pakistan Peoples Party (PPP) and Muslim League (Nawaz) [PML-N]. But after one year, everything is in a shambles. Now the same King's Party - dubbed once as qatil (murderer) league by President Asif Ali Zardari - now holds the key position in power politics.
This is a great failure on the part of PPP and PML-N - both waged a long struggle against Musharraf and his cronies. What a pity that egocentrics of both PPP and PML-N have created a situation where the remnants of Musharraf have once again regained the upper hand in politics. Stalwarts of PPP and PML-N have been reduced to desperately beg PML-Q leaders to side with them in their battle of supremacy in Punjab. So, in our political scenario, the legacy of a dictator remains looming large.
Why is it so difficult to undo the legacy of dictators in Pakistan, even after clear mandates of people given through elections? Why every time in history, after getting rid of a military dictator, we continue to face a civilian authoritarian ruler, who behaves in the same disgusting manner, desiring "total" control over all institutions of the State. These questions need to be debated for finding appropriate answers.
Edward W. Said, a great intellectual of our time, in an interview with The Herald, Karachi, in 1992, while commenting on General Zia's era observed that "in a country where might is right, the dictators ensure the perpetuation of their control through handpicked cronies and lackeys". In 2009, in Pakistan we are faced with the same grim reality. The powerful, with the help of their cronies - are bent upon to dispossess the masses of their legal right of being ruled through their elected representatives. The action of February 25, 2009 has once again confirmed how the powerful want to perpetuate using cronies, henchmen and lackeys.
The events of March 9, 2007, November 3, 2007 and now February 25, 2009 - all black days in Pakistan's political and judicial history - should be seen from the perspective of the presence and continuation of dictatorial legacy - started way back in 1950. On March 9, 2007 a man in uniform summoned the Chief Justice of Pakistan and asked him to resign, which he bravely resisted.
On November 3, 2007, the dictator imposed a second martial law and created a great constitutional crisis that is still lingering on. On February 25, 2009, a civilian, democratically-elected President, following in the footsteps of dictators, imposed governor's rule in Punjab, without any justification. Everybody knows how, after manoeuvring, disqualification order - the State being applicant, argued against its own petition - was obtained against political adversaries from hand-picked judges. Just as Musharraf wanted to rule unchallenged, so does Zardari.
Cronies surrounding Musharraf convinced him to stick to both the positions, President of Pakistan as well as Chief of Army Staff. Now those around Zardari want him to remain party chief and all-powerful president - armed with the sword of Article 58(2)(b). They even convinced him to capture the most powerful province through a henchmen like Salmaan Taseer.
In this power game, unfortunately, the judges who took oath under Oath of Office (Judges) Order, 2007 are being used - earning bad name for the judiciary as an institution. Is this democracy? How could Rehman Malik and Farooq H. Naek contest Senate elections - declared elected on 18 February 2009 uncontested - from Sindh? It is a blatant violation of Article 59(2) of the Constitution of Pakistan.
Political parties and judiciary remained silent on this vital issue where legitimate right of a province is transgressed by two King's men, belonging to Punjab but getting Senate seats under Article 59(1)(d) from the Sindh quota. Why did PML-N, MQM and others remained oblivious - of course political compromises for seats was the reason - and failed to register any protest, let alone filing objections before the Election Commission. The "principle politics" slogan is, thus, a hoax. In reality, all are part and parcel of an ugly, "profitable" political game, without realising that it is self-destructive as eventually, the mighty dump their "allies" and "friends" after using them to meet their end.
If our politicians are sincere with the causes they profess, why are the elected members of PML-N, PPP, Awami National Party (ANP) and others, remain hesitant to table a move in the house to disapprove November 3, 2007 actions of Musharraf? They are capable of unanimously electing Yousuf Raza Gilani as Prime Minister, but not undoing the blatant amendments made in the supreme law of the land by former dictators. What has prevented them, during the last many months to move a bill, resolution or even a constitutional amendment for the restitution of deposed judges who refused to take oath under Oath of Office (Judges) Order, 2007?
The proponents of status quo argue that in the presence of judgement of Supreme Court in Tika Iqbal Muhammad Khan v General Pervez Musharraf and 2 others (PLD 2008 Supreme Court 6) and dismissal of review petition against it, validating the act of 3rd November 2007, deposed judges cannot be restored even by the Parliament. This is a lame excuse. In fact there appears to be another unanimous intention of continuing with pro-establishment judiciary.
Since Proclamation of Emergency of 3rd November 2007 by the then Chief of Army Staff and subsequent two orders, namely, Provisional Constitution Order No 1 of 2007 and Oath of Office (Judges) Order, 2007, were prima facie ultra vires of Constitution, the Parliament by not validating the same can easily remove the cause behind the judgement of Supreme Court, thus paving the way for the restoration of pre-3rd November judiciary. There is no need for a constitution amendment to undo the actions of 3rd November 2007, requiring two-third majority. Why Parliament as a whole, is silent on this issue?
The questions posed above reveal that politicians are victims of their own inactions and lack of will to implement true democratic set up in the country. The judgement of apex court validating the unconstitutional acts of Musharraf is no bar in the way of Parliament as wrongly portrayed by the government.
The parliament, by simple majority, should pass a resolution invalidating insertion of Article 270AAA in the Constitution. This will make the judgement in Tika Iqbal case ineffective as the apex court itself held in 2005 PTD 2286 [Para T, Page2334] that where basis of a judgement is removed by the legislature, the order of even the Supreme Court becomes inoperative. Once it is done, the apex court, vide suo moto action or through filing of review petition, can declare PLD 2008 Supreme Court 6 an ineffective order. It is well established that the apex Court has no power to amend the Constitution of Pakistan - it can only interpret it.
Behind the bizarre episodes of 9th March, 2007, 3rd November 2007 and February 25, 2009, there lurks a continuous struggle between the proponents of cronyism and advocates of rule of law. Pro-establishment forces, even after the exit of Musharraf and elections of February 18, 2008, want to deprive the people of their fundamental rights ensuring no room for judicial activism in this society as a means to empower the people.
This is why Chaudhry Mohammad Iftikhar and other independent judges are a great threat to them. For them, providing independence to judiciary is a suicide, but for the advocates of rule of law dispensation of justice through an independent and efficient judiciary, is a core issue of national survival.
The PPP camp must remember that people's power alone can counter any extra-constitutional move. Judiciary - on which they are depending - will not waste a single minute to side with the men in uniform as they have been doing in the past. A lesson from history is that political leadership with the backing of masses can avert action like that taken on November 3, 2007. But if they keep on repeating their past mistakes - fighting with each other and disrespecting rule of law - the masses will never stand up for their sake to resist any unconstitutional capture of State power.
Courts are meant to interpret law, whereas enforcing the will of people and countering any despotic rule is always a political question that cannot be solved by the courts. Since our political leadership - busy in politics of confrontation and hate - has failed to establish rule of law, the entire society is now in chaos. All kinds of conflicts are surfacing for want of rule of law and accountability of those who transgress their limits.
The main cause of our present day pathetic socio-political and economic situation is perpetuation of dictatorial legacy, existence of inefficient, corrupt, repressive and criminal institutions, which do not give a damn for the welfare of the common people. Successive governments' policies of self-aggrandisement have reduced Pakistan to a state-in-perpetual-conflict. The ever-worsening political and economic situation, with poor law and order, testify to the fact that progress and tranquility cannot be achieved by merely toeing policies of highhandedness.
It is high time that the politicians demonstrate through actions that they have learnt to respect each other's mandate. There is an immediate need to reverse all the unconstitutional acts committed by military and civilian rulers alike - parliamentarians should unite on a one-point agenda to undo the dictatorial legacies of Ziaul Haq and Musharraf.
Parliamentarians, being elected representatives, should be reminded that it is always the Constitution that represents the will of the people and not the legislature itself. Legislature exercises delegated powers given by the mandate of people within the framework of the Constitution, which should not be mutilated by elected representatives of people, let alone by an individual - maybe an elected President or Prime Minister or Chief Minister or nominated Governor - usurping power through unconstitutional means.
Once this realisation is made as well as consensus on it reached by politicians, the present political impasse and future happenings of such events would be remedied and forestalled.
(The writers, legal historians and authors of many books, are Visiting Professors at Lahore University of Management Sciences (LUMS)
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