Towards constitutional democracy

In a tyrannical government, the ruler becomes corrupt and uses his power to further his own interests instead of working for the common good-Aristotle, The Athenian Constitution Ruin comes when the trader, whose heart is lifted up by wealth, becomes ruler-Plato, Republic. The ongoing crisis and siege of some parts of Islamabad confirm that we have miserably failed to establish constitutional democracy. Long dictatorial military and autocratic civilian rules have weakened writ of State during the last six decades. In theory, Pakistan is a constitutional democracy, but in reality it is kleptocracy. Authoritarianism prevails in polity and governance-if Nawaz Sharif acts like a king, the attitude of Imran Khan is no different in Tehreek-e-Insaf. Tahirul Qadri et al exploit people in the name of religions and attractive slogans for self-aggrandisement. In the name of 'revolution' (sic), they create disorder and then call themselves "reformers". Demand of dissolution of Parliaments through mob power is totally unjustified.
The speakers addressing joint session of Parliament on September 2, 2014 did not explain why collectively they failed to solve the problems of people. Why they think their rights have priority over those of citizens. After being elected, they give a damn to the rights of people and treat them as mere "subjects". They as a part of ruling elite-militro-judicial-civil complex, public office holders, businessmen-turned-politicians and absentee landlords-are the main beneficiaries of the existing system. They want to preserve and defend the exploitative system that perpetuates the plight of the poor [State & elites, Business Recorder, July 18, 2014].
Due to existence of exploitative system and lack of constitutionalism, Pakistan remains a battleground of various vested interests and members of ruling elites. Since 2009 judicial activism has emerged as a threat for kleptocracy. Many orders of higher judiciary have been openly defied by those in power. One Premier refused to implement the following instructions of the Supreme Court of Pakistan given in Dr Mobashir Hassan and others v Federation of Pakistan (2010 PLD Supreme Court 265 [commonly known as NRO case]:
"Since the NRO, 2007 stands declared void ab initio, therefore, any actions taken or suffered under the said law are also non est in law and since the communications addressed by Malik Muhammad Qayyum to various foreign fora/authorities/courts withdrawing the requests, earlier made by the Government of Pakistan for mutual legal assistance; surrendering the status of civil party; abandoning the claims to the allegedly laundered moneys lying in foreign countries including Switzerland, have also been declared by us to be unauthorised and illegal communications and consequently of no legal effect therefore, it is declared that the initial requests for mutual legal assistance; securing the status of civil party and the claims lodged to the allegedly laundered moneys lying in foreign countries including Switzerland are declared never to have been withdrawn. Therefore the federal government and other concerned authorities are ordered to take immediate steps to seek revival of the said requests, claims and status."
Conviction of the unanimously-elected Prime Minister in contempt proceedings for not implementing the above order was celebrated by the present Prime Minister. He is now seeking support of all political parties in Parliament to stand by him for his brand of "democracy" (sic)-Speakers from Opposition during joint sessions of parliament openly criticised government but vowed for perpetuation of constitutionalism for survival of the country. This is a very good omen for democratisation.
Since the bizarre episode of March 9, 2007 by Musharraf, there lurks a continuous tug of war between cronyism and constitutionalism in Pakistan. Ruling elites and their cronies want a free hand to plunder wealth of the nation, subjugate their own people, deny them human rights and ensure that there is no room for radical reforms in society to empower have-nots. The process of radicalisation is a threat to ruling elites as they thrive on state resources, ruthlessly exploit the working classes and loot the wealth of nation with impunity. Billions looted by them are lying outside and any radical government if comes into power would punish them for these crimes.
Advocates of rule of law rightly argue that dispensation of justice for all, especially the deprived and less-privileged, is not possible unless the entire justice system is overhauled and a competent and efficient judiciary replaces the existing one that is part of elitist structure. Devolution of fiscal powers, justice and self-governance at grass root level, as envisaged in Article 140A of the constitution, alone can establish an equitable socio-economic order, which is sine qua non of constitutional democracy. Pakistan has one of the worst court systems in the world. People are dying of hunger and apex court is busy in "interpretation of law vis-à-vis right to protest on Constitutional Avenue". When State functionaries indulged in unprecedented brutality in Lahore on June 17, 2014, critics ask, where the judges were-why till today no suo motu action is taken on this issue and the transparency of 2013 elections.
The defenders of "system" should reconsider their performance and ensure accountability of all. Those in power and those who are protesting against them must realise that at the heart of the concept of constitutional democracy is the assurance for citizens that their inalienable rights are going to be respected and nobody is exempt from rule of law. Revolution cannot be brought by mere sloganeering. Democracy also cannot be established through electioneering alone. The existence of effective legal system is essential for ensuring enforcement of rights of the people. The rule of law is the principle that no one is exempt from, even those who are in a position of power. The rule of law can serve as a safeguard against tyranny, because fair, just, and impartial laws ensure that rulers do not become corrupt or despotic. Establishment of a welfare State is a cherished goal, but Imran Khan and Tahirul Qadri must realise that no positive change can be achieved through force and violent means or by resorting to rhetoric.
It is true that the rich and mighty in Pakistan undermine democracy, constitution and State institutions with money power. However, it does not justify use of force to capture power as Imran Khan and Tahirul Qadri advocating. To bring positive change in system is collective responsibility of society. Reforms are necessary to dismantle exploitative structures as in a true democratic set-up the electoral process ensures dominance of the people over those who hold political offices. Military rule is no answer to our problems. They have been posing themselves as saviours, whereas the reality is that under their rule, we lost one part of the country, suffered economically and politically, fundamental rights violated, political workers hanged, killed or exiled, just to mention a few.
Rulers betray voters when they deprive citizens of their fundamental rights. In Pakistan, the vast majority has no access to health, education, and dispensation of justice. The situation is lamentable but use of violent means to change it also unjustifiable. The remedy for masses is to resist all kinds of undemocratic actions and wage struggle for representative and participatory democracy in which all the State organs discharge their functions within strict parameters and powers laid down in the supreme law of the land.
Implementation of Article 3 and 140A of constitution is a prerequisite for a sustainable democracy that ensures exploitation-free structures and responsible 3-tier governments ensuring protection of rights of the people guaranteed in the supreme law of the land. Legislature is sovereign but the constitution is supreme. Legislators exercise delegated powers given by the people within the framework of the constitution. We need a Pakistan where will of the people prevails. Prevalent system protects only the rights of elites. Pro-people forces in order to establish representative democracy should unite all exploited classes and their sympathisers for the strict compliance of rule of law and enforcement of fundamental rights enshrined in constitution democratically and not through violence and use of unlawful means.
(The writers, lawyers, partners of law firm, HUZAIMA & IKRAM, are members Adjunct Faculty of Lahore University of Management Sciences)