By Dr. Khalil Ahmad
The article was carried by Frontier Post
Our parliament is nothing more than a trade union house of the parasites of Pakistan!
Both of the houses of the parliament are populated by those whose only ‘qualification’ is that they are elected by a constituency. Why they have been elected, and how they have been elected is just beside the point. There is rampant manipulation of the process of election be it direct or be it indirect: before it, during it and after it, at all the three stages. Some of the noted examples of manipulations are delimiting the constituencies, parties’ and candidates’ give-and-take and adjustment before the formal process of election starts; fake voters’ lists, use of fear and foul to keep away the voters, bribing of the voters, selling and purchasing of the votes, concocted counting at the polling stations while the election is held; and altering the results when the final counting is done. All these and so many other factors affect the fate of those who aspire to be elected but have no good bearing on the fate of those who elect them.
One important point is the “why” of voting this or that candidate into the parliament, and in case of the candidate, “why” they want to be elected. This is not to doubt the right of the voter to vote this or that candidate, or the right of the candidate to be elected. This is just to raise a point: how the knowledge of both the voter and the candidate determine the nature and meaning of the election, and also how irrelevant is this under the present circumstances in Pakistan.
Ask a voter and he will cite a host of things that he takes into account before deciding whom to vote. To our dismay, it may include all those things which are politically meaningless (or subversive to the very interests of the voters ultimately). To our comfort, it may be a hot political issue all meaningful to the quality of governance, such as in the recent general elections Pakistan Muslim League (Nawaz) was given votes for its pledge to restore the deposed judges. It is a rarity, then.
Ask a candidate why he contests elections and he will repeat the slogans and at best the clichés which have no real content, like ‘want to serve the country,’ as Mr. Nawaz Shariff is wont of repeating endlessly. Indeed, that candidate has nothing substantial to say. He is just after status, privileges, ruling elite active membership, and last but not least money.
As said above it is all irrelevant. The difference that the graduation degree bar, brought in by General Musharraf during the last years, made is of no significance. Neither honesty nor education is required here. The same may be said about the voters also. It is useless arsenal in their once-in-a-five-year game. It is useless for the sole reason that once elected the MP is just un-accessible not only to his electorate but to any sort of accountability process also. Now he is law unto himself and member of the Parliament Club of the most privileged of all the human beings.
No rule, no law, no norm, no code, no principle, no ethics and no morality can dare touch him at least for the next 5 years. No doubt, he indulges in all types of imagined corruption, nepotism, favoritism, loot and national damage, and he cannot be brought to book but when the 5 year term expires and in that case too if there are no NRO type arrangements are available to him with the new government.
Recently, when the present Pakistan Peoples Party government was not reinstating the deposed judges regardless of its open promises, and hence was the target of the harshest criticism, its apologists used to argue: ‘we are elected government now and no one can force us to do this or that; wait for our 5 year term to complete and then you can vote us out.’ So, the elections, both direct and indirect, in Pakistan exalt an MP to a position of absolute authority from where no one can dethrone him until the end of his term. Probably, it was this bullheadedness of all of the unfortunate civilian governments that made them unyielding and positioned beyond any pale of self-responsibility and internal and external accountability that provoked the Pakistan Army, of course, absolutely unreasonably and unjustifiably, to break the shells of those governments and throw them out of the tub.
That’s the greatest loophole of democracy in Pakistan and need to be given due attention urgently. That may help escape the parliament from stagnating. Under the circumstances, all that bullshit that “the parliament is supreme,” “that the parliament is sovereign” is a clear symptom of that bullheadedness which in fact despicably defies the constitution of the country as well as the very concept of rule of law. It is the same sense of absolutism that manifests itself in sheer arrogance that we witness in the PPP MPs especially in its ministers. They seem to be superciliously radiating the message: ‘See we are the elected ones, we are all free to do whatever we like; no one can check us, stop us; we are the sovereigns during our 5 year term. Be away from us.
No doubt, all the other parties too behave in the same way while in government. But the PPP has a distinction: it is its arrogance. The writer is of the opinion that this ‘over-teeming’ arrogance of it comes from its philosophy of populism which is based on the assumption that in the name of people everything is justified be it against morals or be it against rules and laws of the land. Let it be clear here that this mention of its arrogance does not imply or justify any interference from whatsoever quarter especially from Pakistan Army. What is under consideration here is: how to bring a government to act under the supremacy of the constitution?
As said earlier that honesty and education are irrelevant for democracy; what is directly relevant to democracy is democracy under the rule of law. That’s the issue! No matter who is voted into government by the electorate, and for what and why – it is all immaterial in case there prevails supremacy of the constitution and rule of law in the country. The deadly disease, however, is the parliament itself which is since its beginning sitting on the constitution and has been using it to entrench and promote its elitist interests and gains. It never took seriously the constitutional values like supremacy of the constitution, rule of law, fundamental rights of the citizens, and independence of judiciary. That has stagnated it incurably!
It was the end of the all hopes which people ever had pinned with the parliament when General Musharraf tried to force the Chief Justice Iftikhar Muhammad Chaudhry out of the Supreme Court. Among other things, this act of his was totally unconstitutional. But the parliament at that time was just laughing and defending the General’s decision. Did that parliament do anything to preserve the constitution? What if it was a parliament created out of General’s own unconstitutional misdeeds! Why couldn’t it revive and restore the constitution if it wanted to! When did it do that? Never!
Till March 9 (2007), everything was OK for the parasite elites of Pakistan: there was a parliament sleeping in the pocket of the General; there was a judiciary all subservient to the wishes of the General. Actually, the judiciary in Pakistan has always been an undistinguishable part and parcel of the parliament (so-called legislature) or government. It had no independent status. It did not care a dime for the fundamental rights of the citizens. It never acted as the custodian of the constitution, rather played the role of an accomplice of usurpers and civil governments in disfiguring the constitution. It never thought of establishing the supremacy of the constitution in the country. At best, it confined itself to the menial position of a handmaid of the parliament and governmen
That was why in all their disgust with the General and his complicit parliament, the bar associations and councils, lawyers fraternity, civil society organizations, and people at large stood up against the General who was overseeing the parliament also. How ridiculous it was that the parliament of the time did not take notice of the General’s unconstitutional step, and as people were steadfastly demanding the restoration of the Chief Justice, even then it did not show any nerve to speak against the General. All the more, when the General on November 3 (2007) scrapped Pakistan’s higher seats of justice, the parliament endorsed his emergency-cum-martial law and PCO.
The most depressing fact about the parliament is that even after the ‘fair and free’ elections of February 18, 2008, as a result of which new parliament came into effect, nothing changed. The same policies of the previous government continued. The deposed judiciary remained deposed and un-restored. Against all norms of decency, morality and constitutionality the new government and its parliament was abnormally busy in protecting the General and is still under this burden. So, what this parliament is worth? Is this a constitutional body doing things constitutionally, and acting in accordance with the constitution? Not the least!
No denying the fact that it only acts to safeguard the elite classes’ interests and sure to promote the privileges and perks of its members and with no remorse or shame. How fast it acts when it has to pass an increase in the salaries and benefits of its own MPs! But it is lazier than the proverbial tortoise when it comes to taking care of the fundamental rights of the citizens and their interests.
Here needs to be mentioned the “role” of the opposition in the parliament. More or less, it is opposition for the sake of opposition; it does not take up those issues which directly hurt the government probably for the fear that in case these issues are resolved, benefit may accrue to the ordinary people. That will be against their Club’s code of conduct. Actually opposition’s opposition of the government is not for the sake of safeguarding peoples’ interests, it is determined by its own power- and privilege-seeking politics. Thus, opposition in the parliament has no revolutionary aura about it; it is just the group of politicians from the same Club waiting for its turn to come into the government. That’s the game and that is why the opposition politicians never opt for such policies and acts that could permanently harm the sanctity, formation and hold of their “trade union house” on the country’s politics and its resources.
Now, it is quite pertinent to discuss the issue that is persistently raging our minds since the day of March 9 (2007) and especially with the first restoration of the Chief Justice Iftikhar Muhammad Chaudhry on July 20, 2007, it got a boost. Presently, it’s being highlighted as the top most issue affecting the survival of the country and one that may cause another military coup to be imposed on Pakistan. Obviously, the politics of the situation tells that this issue has been raised with a hidden motive, i.e. to mar the first ever real gain by the people of Pakistan. It aims at destroying the independence of the higher courts under the guise of fabricating a fear of collision of the three organs of the state, judiciary, legislature and executive. Also, it tries to burry the most crucial issue, i.e. how to contain the parliament from behaving against the dictates of the constitution.
Sometimes, to resolve this issue it is suggested that if the tenure of the parliament is minimized to 3 years instead of the 5 years, it will start behaving in accordance with the values and spirit of the constitution and will not manipulate it to its MPs’ interests. That’s not the issue! The damage that a parliament causes in 5 years, its tenure’s reduction to 3 years cannot lighten the magnitude of that damage. If the past is any guide to future, in view of just 3 years in its hands, a parliament will play foul at a greater speed. That will make an equation on each side of which the cost of the damage will be more or less the same. Thus, the tenure’s reduction may only hurry up the speed of the damage instead of containing it.
What we need to make the parliament behave in moral and constitutional way and in accordance with its members’ constitutional oath does not lie in setting up this or that type of NABs? The constitution of the country already provides a mechanism for the lapses of the parliament to deal with. It is in the shape of a judiciary which has been made the sole custodian of the constitution and invested with the duty of interpreting and protecting it. No check conceived and implemented by any government how fair and upright it is could be more effective than this one. It is only because of this moral authority that resides with the higher courts that all the usurping military dictators and elected civilian kings try to keep it subdued undoubtedly to seek its nod. The greatest evidence is General Musharraf’s act of 3 November (2007) which exclusively targeted an un-compliant judiciary with a clear purpose to install hand-picked judges to have judgments of his liking. Some enthusiasts may object that an increasingly unyielding media was the second casualty; that may not be so since media itself better knows that state and government both have so many other ways to annex or divide it instead of doing it under the banner of emergency or PCO.
That how fiercely the representatives of the elite classes are resisting the new independent judiciary (a really dangerous factor that has disturbed the whole balance of the sixty year old parasitic system) is evident from a recent case of arbitrary taxation by the government. The carbon tax was cleanly approved by the parliament without any word of dissent from the opposition parties including the biggest opposition party in the parliament, PML (N), which then took it to the Supreme Court. What a strange parliament and what an alien opposition! That cogently demonstrates the unholy alliance of the parasite classes of Pakistan, and in the parliament of government and opposition benches.
When the Supreme Court took suo moto notice of the imposition of the arbitrary carbon tax on petroleum products to the tune of Rs.10 in one go, there was jubilation in the people, but a shiver of serious concern went through the spine of the government and elite classes’ representative intellectuals. Moreover, when the Supreme Court suspended the carbon tax, it was celebrated throughout Pakistan as a victory by the ordinary people. How the government responded to it is symptomatic of its anti-people character and parasitic elitist nature! It took just hours and in the dark of the same night an ordinance was issued from the Presidency imposing a new tax, petroleum development levy. Mala fide to its core, wasn’t it!
However, in the wake of this suspension and re-imposition of the same tax with a different name many an argument exchanged that reveal the tenor of the people’s fight against the parasite elite classes and the tactics of the parasite elites to counter it. Not only the staunchest representatives of the parasitic system but also those who sit on the fence and are unaware of the dynamics of this fight pleaded for non-interference in the affairs of the executive by the judiciary. In fact, they argued in favor of executive’s sole right to arbitrarily impose taxes. Once again, an intense feeling of scare was created that the judiciary’s interference in the affairs of the executive and legislature may derail the (‘parasitic’) system and hard-earned democracy may once again be thrown to dogs.
Despite the concurrence of the best legal minds of Pakistan such as Fakhruddin G. Ibrahim, Barrister Aitzaz Ahsan, that the Supreme Court has got constitutional authority to review and quash the acts of both the executive and the legislature that it deems violative of the fundamental rights of the citizens and precisely that is its duty, however, there were others who relaxed in interpreting the constitution solely literally. They saw the Supreme Court over-stepping its limits. It’s no place to see the merits and demerits of all such opinions, as it is just for showing the magnitude of the division of opinion that this episode found a mention here.
The argument that this article aims at putting forward is based on, and derives from, nothing else but the constitution of Pakistan. First, it’s the constitution that brings legislature, executive and judiciary into existence, and in addition, other institutions, and then it provides for their duties and responsibilities. It is the constitution that says that legislation rests with legislature, but at the same time all the legislation that the legislature arrives at the review of it rests with the judiciary.
Similarly, as the constitution binds the executive to act and behave in accordance with its dictates, the review of the acts of the executive also rests with the judiciary which while reviewing the executive’s acts not only takes into account the provisions of the constitution but its spirit also. As is clear from the constitutional gamesmanship of all the parliaments (the present one is conspicuous by its suspicious character) and as manipulation of the constitutional process has become a hall mark of both the legislature and the executive, it is extremely important to vouch for the spirit of the constitution, the most hurt entity probably more than the constitution itself.
It is this approach to the all important spirit of the constitution which belies the literalist tendency to interpret the constitution. That shift is important also for the reason that finally the Supreme Court under the headship of the Chief Justice Iftikhar Muhammad Chaudhry had started treating the constitution not as a document that details the affairs of the government, i.e. how a government is to be run and changed, etc, as we remember we have been hearing the law experts repeating now and then, but the constitution is a document that provides for the protection of the citizens of the country. In other words, it means the sole basis of a constitution, or say it a ‘social contract,’ is people’s fundamental rights. All other organs of the state and its institutions are subservient to this effect.
How apt are the words of Patrick Henry (1736-1799), American revolutionary leader, in this regard: “The constitution is not an instrument for government to restrain the people; it is an instrument for the people to restrain the government lest it come to dominate our lives and our interests.” Thus, the whole movement for the rule of law in fact facilitated this shift in the interpretation of the constitution. In this sense, this movement did not start on March 9 (2007), but commenced the moment Justice Iftikhar Muhammad Chaudhry announced his first judgment based on the articles of the constitution which talk of fundamental rights of the citizens and their inviolability. That’s the essence of that movement!
Let another argument be counted here: it says that if both executive and parliament do not care about the rights and interests of the people, for whom the constitution exists, and as indeed both executive and legislature have since long entered into an unholy alliance to safeguard their own interests and privileges, who is there who will come to the rescue of the people! Who will contend that it is for the opposition to come to the rescue of the people? But who will deny that there is no opposition in the parliament? What PML (N) is doing in the parliament and outside it is not worth calling opposition! The Pakistan Muslim League (Q) is a party sitting on the opposition benches willy-nilly only because it has not been invited or given any privileges whatsoever. Also, for instance, how ridiculous it is that there is no opposition in the Baluchistan assembly! All that assembly sits in the government house! In other provincial assemblies, it is different but in substance it is the same, since there exist ‘birds of a feather’-like arrangements between the opposition and government benches.
No doubt, that necessitates the Supreme Court to take the lead, the above argument says. Admittedly, this argument is extra-constitutional. It derives its force from the unfortunate circumstances where the parliament (both legislature and executive) has forsaken the people and puts the burden on the Supreme Court illogically and unnaturally. Probably, this argument takes its inspiration from the active role of the Supreme Court that it exhibited during the last two years or so. That makes this argument’s case for judicial activism weaker.
The term judicial activism is not new to Pakistan and prior to the rule of law movement it was being used, in negative as well as positive sense, to typify some of the judgments and overall role and character of the Supreme Court such as when Sajjad Ali Shah was Pakistan’s Chief Justice. Its latest use is tied with the post-March 9 (2007) Supreme Court and its practice of taking suo moto notices. At one time, the government thought of “banning” this right of the higher courts which it considered interference in its affairs and working. Presently, the judicial activism of this new Supreme Court has been under heavy criticism on the same pretexts of collision of the state organs, derailing of the system and impending imposition of another military coup.
This article though endorses activism of the Supreme Court to secure the fundamental rights of the citizens and to ensure that rule of law prevails in the country, but it bases this view of it on the constitution alone, and advocates it solely via the Supreme Court’s constitutional role of the custodianship of the constitution its interpretation. All the more, it pleads that the Supreme Court must be quite strict in protecting and interpreting the constitution, meaning that no doctrines of necessity or such like things be given any chance, and no extra- or ultra- and anti- constitutional acts of any individual, government, or parliament, be tolerated anymore. In sum, no more deviating from the provisions and spirit of the constitution by any individual or institution be allowed for good or for bad. Also, the fundamental rights of the citizens be enforced in their true spirit.
Though, our argument acknowledges the failure of both legislature and executive in protecting and enforcing the constitution in its true spirit and instead of that willfully manipulating it or colluding in and allowing its manipulation, however, it does not concede to the anarchist argument to let the courts go for judicial activism outside of and beyond the framework provided by the constitution. It does not favor replacing of the one type of anarchy by another type of it, i.e. over-powering of the judiciary by the executive and legislature be turned into subduing of the legislature and executive by the judiciary. Our argument stands for the due constitutional role of the Supreme Court to be taken up and played by it on an emergency basis so that fatal lapses of the last three decades be rectified and people’s confidence in the viability of the constitution be restored fully and their fundamental rights be ensured to them promptly. This argument takes no recourse outside the constitution and by remaining within the confines of the constitution tries to resolve the crucial problem of “imbalance” created by a parliament which has always been inimical to the constitution itself.
Thus, the judicial activism that this article advocates is in fact a going back to the basics of the constitution as far as role of the Supreme Court is concerned. It exhorts the Supreme Court to play its due constitutional role with zero tolerance. Unfortunately, that’s the logic of the circumstances that has forced us to use the term ‘judicial activism,’ whereas it is just asking for its due role playing in accordance with the provisions and spirit of the constitution. So far the Supreme Court has been interpreting the constitution to suit the interests of the parasite elite classes, or in other words, the legislature and executive which have merged in an impotent parliament such as the present parliament. This parliament has also dissolved the opposition (read PML (N)) in its own being. It’s time for the Supreme Court to be true to the letter and spirit of the constitution, liberate it from the jaws of the parliament, and bring the process of its interpretation back to its real basis, i.e. security and protection of fundamental rights to all the citizens of Pakistan. What else is the purpose of the constitution of Pakistan? No worries even if it is alleged as judicial activism! It is constitutional!