by Prof. Khurshid Ahmad
The painful constitutional crisis being faced by Pakistani nation
since last about four months speaks of the base thinking and moral degradation of our
political leadership. The waywardness, the thoughtlessness and the self ego with which
basic constitutional and institutional matters have been played with, is most disturbing.
With the appointment of five Supreme Court judges an impression was created that things
have settled down and some accord now prevailed. What, however, happened subsequently more
than established that the row continued covertly. Nothing was surprising as the patriotic
elements were apprehending something very serious. Worst of all, even the Supreme Court
stood divided and this most sacred of the state organs was subjected to assault in an open
fascist manner. Some one has to answer, "to ti" (what is it)?
The circumstances call for an objective and
independent examination of the whole issue. The real causes and factors leading to this
dismal situation need be determined. It is not simply the misleading advice of some
‘advisers’ because it is well known to everybody that the real responsibility
lies with those who selected the ADVISERS, exalted them to high positions and acted upon
their advice. The attitude of shifting blame to wrong shoulders is not only unrealistic
but also self deceiving and devastating.
March 20, 1996 has assumed the importance of a
milestone in the political and constitutional history of Pakistan. This day the Supreme
Court through its epoch-making verdict tried to stabilize country’s constitutional
framework on foundations that paved the way for the future of democracy and supremacy of
law. It was a full bench unanimous decision of the Supreme Court. It appears that the
Supreme Court took this historic step so as to put the bogey of country’s
constitutional government back on the track after profound thinking and under great mental
stress. But it is a pity that the political leadership of the country kicked this decision
like a football in their political game. The decisive mechanism that was suggested for
improving the situation was almost sabotaged for the sake of personal aggrandizement and
self ego. No effort appears to have been made to put the constitutional institutions on
stable footing because the decision was not seriously accepted. That was more than evident
from the seemingly backdoor efforts of the government to create and widen the rift within
the apex court and the government’s insistence on political solution rather than
legal redressing.
What are the real issues and what is at stake,
should be clearly understood. As we see, future of democracy and the rule of law depends
much on the successful defusing of the present crisis.
Dictatorship, army or civil, comprises
centralization and monopoly of authority, whereas democracy stands on the basis of
supremacy of constitution and rule of law. That is why the balance of power and authority
between basic political institutions and a coordinated system of answerability, is
inevitable for a civilized and democratic society. This balance in authority is the most
effective mode for safety against tyranny, confusion and anarchy.
Therefore it is necessary in a modern state to
achieve this end through proper checks and balances by way of the distribution of
authority on the one hand and mass political awareness, freedom of criticism and
‘Ehtisab’ in the country along-with full opportunities for the press and media
to play their role, on the other hand, so that every institution could function freely and
evenly within their respective spheres and collective norms could be adhered to. Supremacy
of one over others will only lead to upsetting the entire system.
The political leadership of our country has only
frustrated all its claims for democratic mindedness by trampling the basic rights of
common people. It has tried to harness journalism and media and has even tried its every
nerve to overpower judiciary as well. Series of actions in this direction include limiting
and encircling the powers of judiciary, appointment of favourites in judiciary by ignoring
the principles of merit, discarding the unsavory decisions’ of the judiciary, rather
violating them openly, stultifying them and adopting innovative measures to undo them and
non-compliance of the constitutional requirement of segregation of judiciary from
administration. This is the background wherein the heinous activities of Benazir
Government of Peoples Party viz. wholesale appointment of favoured judges in the High
Courts and in the Supreme Court, dismissal of trusted and experienced judges, transfer of
not only senior judges but the Chief Justices of High Courts also without due consultation
and dumping them into Shariat Court, ultimately forced the Supreme Court to announce its
verdict to save the judicial system of the country - the verdict of 20th March. Through
this decision the devised vivid principles to protect the judicial system according to the
Constitution and to save it from the intervention of the political leadership. Now country
could go apace towards democracy and the rule of law by adhering to these principles.
While the people at large have taken this decision as an historic milestone, the
Governments found it as a hindrance for their dictatorial aims. This is the main cause of
confrontation between judiciary and government. It is being projected as a risk against
the ‘supremacy of Parliament’ or as ‘parliament and judiciary row’
just to confuse the issues. Graciously enough for the nation, both the big traditional
parties (one which was in power at the time of verdict and the other now holding reins of
power) have in their respective periods been busy to undo the verdict by not honouring its
requirements.
Now let us see what the verdict said and what
principles it tried to settle and stabilize. It is regrettable that a spate of discussions
went on in the country but it lacked grip on the implications of this verdict.
1. Pakistan is not a secular state but is an Islamic
state which stands on the foundations of Supremacy and Lordship of Allah. Therefore all
the matters in this country have to be decided in the light of the teachings of Islam. It
is the requirement of the Objective Resolution which forms enforceable part of the
Constitution. According to Article 2(b), Islam is the religion of the state. Article 270
which determines Qur’an and Sunnah as the basis for legislation and for the oath that
is taken by the President, the Prime Minister, the Chief Justice, the Ministers, the
judges and the members of the Parliament before they assume office, is the foundational
article of the constitution under which the state and the authority become Trust to be
administered through the representatives of the people and office bearers within the
limits as ordained by Islam.
2. Besides being an Islamic state, Pakistan’s
constitution delineates foundations that concern parliamentary democratic system of the
country, its federal form, protection of fundamental rights and absolute freedom of the
judiciary.
3. Pakistan’s constitutional framework
distributes powers to the three institutions with absolute balance. Parliament enjoys
powers of legislation, running of the state is the responsibility of administration that
consists of Prime Minister, his Cabinet and subordinate bureaucrats, and the judiciary has
the authority to monitor the enforcement and implementation of law and to spell out its
ramifications and annotations.
4. Judiciary can discharge its assigned duties only
when it is wholly independent and segregated from the administration, and its system of
appointments, demotions and transfers is based on such transparent principles under which
it is possible to get justice, and merit is upheld. It should avail the support of all
concerned organs but must be free from the intervention of political elements and self
seekers.
5. Any one whose rights have been trampled or who is
adversely affected by the important matters in the country, enjoys the right to knock at
the door of law and courts are responsible to see that in case justice is not administered
they intervene suo moto or on a petition from any person. It is but obvious that through
this decision two main fundamental rights of the common person have been recognized,
though complementarily, viz:
(i) Even if one is not directly an aggrieved party
but if it involves fundamental rights, can knock at the door of law.
(ii) If in the lower court (may be the high court) a
case is lingering on (as was the case of Jehad Trust which had been unnecessarily kept
pending for three years and hearing was not fixed), the Supreme Court can be approached
provided it involved fundamental rights.
6. Interpretation of the Constitution and the law is
the sole prerogative of the judiciary. According to the Constitution of Pakistan, the
judiciary is the protector of the Constitution and any legislation that hits the
Constitution -- which is based on Islam and the Objectives Resolution -- can be declared
void by the higher courts under their authority. In other words the judicial review is the
constitutional right and responsibility of the higher courts in Pakistan. And in the light
of the later decisions every constitutional amendment that is contrary to the basis of the
Constitution, would be against the law and the Constitution.
7. Constitution is an organic whole, one part of it
explains the other part and even if there is apparent conflict and incoherence between the
provisions of different parts, it shall be interpreted in such a way that it conforms with
other parts and is in accordance with the basics of Constitution, or is very close to it.
Besides settling these seven basic principles, the
March 20 verdict also settled certain principles and regulations with regard to the
appointment of judges and the freedom of judiciary, so that any ambiguity is avoided and
the judiciary performs its duties properly. Following six are the most important
regulations:
(a) Appointment of judges should be on merit and in
a transparent way. It is an essential part of freedom and independence of the judiciary.
(b) Constitution suggests mode of consultation and
lays down an unambiguous system for it that shows that it was not the exclusive authority
of the government and none enjoys supremacy in this regard:
(i) This consultation is not mere formality, it is
rather mandatory;
(ii) Consultation shall be between President, Chief
Justice, and Governor of the respective province and in the case of High Courts, the Chief
Justice of concerned High Court;
(iii) The consultation should be meaningful and
purposeful leading to consensus so that no room is left for any irregularity, political
considerations, influence or individual discretion;
(iv) More linkage with a political party in the past
is not necessarily a disqualification but there can be no room for appointment for
political purpose or as political bribery;
(v) The administrative head (say Governor) can
render advice about the background and moral character of an individual but the
person’s legal capability and acumen can be verified by only those who possess legal
experience and excellence. Therefore the advice of the Chief Justice High Court and Chief
Justice of Pakistan is final in this respect;
(vi) Final authority to appoint rests with the
President but he can neither go against nor without the advice of the Chief Justice to
suggest any other name. If the President differs with the advice of the Chief Justice, he
has to record reasons for doing so and the Chief Justice enjoys the right to discuss
dissenting reasons concerning legal ability and capacity;
(vii) For appointment it is necessary that the
President and the Chief Justice both agree. On the refusal of Chief Justice, none can be
thrusted over the courts.
(viii) After appointment, promotion shall be on the
basis of seniority and the same should hold good in the case of Chief Justice High Court
so that senior person finds his proper place;
(ix) Judges working as Additional judges must have
first right for confirmed appointment unless there is something against them;
(x) For appointment as judge it should be necessary
that one has been actually practising for ten years. Simple registration is not enough.
(c) Appointment as Acting Chief Justice can be
purely temporary - in ordinary circumstances 30 days and in extraordinary circumstances
(e.g. death) at the most 90 days. The Acting Chief Justice shall dispose off day to day
routine matters but his advice in regard to appointment of judges shall not be effective.
This advice should come only from a permanent Chief Justice.
(d) Vacancies of judges should be filled up within
one month. The question of filling posts that are likely to fall vacant must be considered
ahead of time so that appointment is made within 30 days.
Additionally the verdict has also settled the
principle that there is no way such posts should remain vacant for more than 30 days and
at the most 90 days. Thus a time-frame has been decided for action under the Constitution
which shall be applicable to all appointments and related matters.
(e) Appointment of Supreme Court judges as Acting
Chief Justices of High Courts or shifting Supreme Court judges or Chief Justices High
Courts to Shariat Court disregarding their wishes is against the Constitution and freedom
of judiciary. Similarly there is no justification for transferring judges against their
will by way of penalty. This verdict clearly spells out its supremacy as contained in
Article 209 and other clauses of this nature.
(f) Appointment of adhoc judges in the vacancies of
permanent judges, is not correct.
Besides the seven basic principles, these six
principles and regulations in regard to appointment and transfers have been settled in the
verdict. Thus it is for the first time in the history of Pakistan that judiciary has
fortified itself in a way it can function as an independent and powerful institution and
the fortification is the sine quo non for the protection of fundamental rights, supremacy
of law and attainment of justice. But in our view, all these provisions area necessary yet
not sufficient for the purpose. Unfortunately our political leadership is not prepared to
accept the essentiality of these things, which is not a good omen for democracy and
supremacy of law.
The fortification by the judiciary for the supremacy
of law and administration of justice, is being presented from a very wrong angle and it is
branded as an onslaught on the supremacy of the Parliament, which is only to create
confusion. We shall discuss it latter but before proceeding further it is necessary that
we should bring out in an objective and honest way the attitude of the two Prime Ministers
and their parties so that real illness could be determined.
The verdict of March 20, 1966 was taken by Mohtarma
Benazir, the then Prime Minister, as a declaration of war from judiciary against the
Parliament and she tried to avoid its implementation till the last moment. That is why the
charge sheet prepared by the President to justify dismissal of her government,
concentrates mainly on her attitude in this regard and it was recognized by the Supreme
Court as a crime on the basis of which her government was rightly dismissed.
The attitude adopted by the present Prime Minister
and his aides, through delay in appointment of five judges, amounted to disregarding the
advice of the Chief Justice. They expressed their open indignation against the said
verdict and about all the settled basic principles that was sheer non-confidence. The
firmness with which the Chief Justice behaved, was not merely sticking to his advice but
it was a struggle for getting recognition of principles - and this struggle continues.
Those in power have come all out against the judiciary, considering least what was at
stake. The damages caused will hardly be repaired.
Let us see what has been the stand of Peoples Party
and the Muslim League. The attitude of Benazir government formed part of President’s
charge sheet and court’s decision. To refresh peoples’ memory, a reference from
the Supreme Court decision is reproduced here:
The Prime Minister Benazir Bhutto in her statement
in the National Assembly on 28th March,1996, criticized the court decision and charged it
for political intervention. She went to the extent of saying that court was a part of her
government. On 29th march she said, ‘Supreme Court cannot perform the duty of adding
a mini-constitution." She averred ,‘if the decision is accepted, the Chief
Justice has to go". Giving an interview to the German Radio she said,
"Government is firmly on its stand and will not budge an inch".
The present Prime Minister, who was then the leader
of Opposition, had branded this stand of Benazir government as treason against the
constitution and had paid tributes to the Courts. But what is his stand now? He and all
his aides are challenging the right of the court to interpret the Constitution and
depicting it as an attack on the legislative functions and the parliament. They brought
out ordinance to reduce the number of judges of the Supreme Court but it had to be
withdrawn. Appointment of judges was penned till last hour. When the Chief Justice advised
President to take action under Article 190 and when the President and the Chief of Staff
refused to support and ratify the unconstitutional attitude of the government, they made
appointments as per advice of Chief Justice in ‘public interest’. But with what
mental reservations! Following portion of his speech needs attention:
"Parliament is the most basic and supreme
institution of parliamentary democratic system. It depicts the dignity of the nation.
Parliament is the creator of the Constitution and its protector as well. Even if other
institutions are in tact but parliament does not exist, it is said that democracy has
ended, dictatorship has overtaken the country. Parliament is like heart in the body of
politics. Other institutions function as its supporters and ensure the supremacy of the
Constitution. It is necessary for the integrity and survival of democracy that every
institution should function within its limits and should not assume functions of other
institutions."
While claiming all this, the Prime Minister forgot
that parliaments existed under the autocratic fascist system in Germany and in Italy and
in the whole socialist world and under socialist dictatorships, but none recognized it as
democratic system!
On analyzing the thinking of both political parties
and of their heads, the basic points that come to the fore are:
1. They consider judiciary a part of government and
subservient to it.
2. They do not recognize the right of the judiciary
to finally interpret the Constitution and the law, because under these powers judiciary
can declare any legislation passed by the parliament as void. They take this authority as
an attack on the legislative powers of the parliament.
Both of these assumptions are wrong and go against
the established principles of Islam and democracy. Unless the political leadership disowns
these wrong assumptions, this row shall neither end nor the foundations of democracy shall
stabilize.
Freedom and independence of judiciary and its
segregated entity, as from the government of the time, is the basic principle of Islam and
democracy. It is the responsibility of the judiciary to see that the Constitution and the
law are fully respected and wherever there is any infringement and in case those in power
or any other group are depriving the people of their rights, it should apprehend them and
restore the right to whom it is due. This is possible only when government of the time is
answerable to the court in the same way as an ordinary person. Court is the only forum
where justice can be claimed against the government of the time and it treats both the
ruler and ruled, equally. It can be only the dictatorship or the fascist system where
judiciary is part of the government and subservient to it. It has no place in Islam and
democracy. For the understanding of Islam’s approach in this regard, two anecdotes
are quoted here.
During Khilafat-e-Rashida, it was the
caliphate of Hazrat Ali. The capital had been shifted to Kufa and Qazi Shureh was the
Chief Justice. A dispute between Ameer-ul-Momineen Hazrat Ali and a Jew comes up
for hearing. The Ameer-ul-Momineen had dropped his zira (protective armour)
somewhere. The Jew picked it up. When Hazrat Ali came to know of it, he claimed it but the
Jew refused to give it back. Ameer-ul-Momineen knocked the door of law. The Chief Justice
called for the statements of both. The jew said that it was his own and the proof was that
it was in his possession. It is the responsibility of the plaintiff to produce the proof
and present evidence for it. Qazi Shureh asked the Ameer-ul-Momineen to produce evidence
to prove his claim. Two evidences were produced - Hazrat Hassan and Hazrat Qambar. Qazi
Shureh accepted the evidence of Hazrat Qambar and remarked that evidence of Hazrat Hasan
was not acceptable. (Some reports say, even Qambar’s evidence was turned down, as he
was Hazrat Ali’s bondsman).
Hazrat Ali surprisingly asked, "You are
declining the evidence of Hasan whereas the Holy Prophet (p.b.u.h.) had himself said that
both Hasan and Hussain are the leaders of the yough in Paradise". Qazi Shureh
replied, "You are true, the Holy Prophet (p.b.u.h.) did say this, but it is also the
principle of Islam that evidence of a son in favour of his father is not reliable".
Ameer-ul-Momineen’s claim was dismissed in the absence of acceptable evidence.
Pondering over this anecdote, three main basic
points come to fore:
1. Free and independent entity of judiciary and
government segregated from each other;
2. Rule of law - Hazrat Ali does not take his zira
back despite his being Ameer-ul-Momineen and does not make use of any functionary of the
administration to obtain it. He takes recourse to the powers of judiciary instead of
utilizing the powers of authority and thus he recognizes the supremacy of judiciary in
regard to freedom of courts, administration of justice and enforcement of law.
3. The courts administer justice above board and
consider the plaintiff and the respondent as equal, call for evidence according to the law
and dismiss the claim of the government of the time due to insufficient evidence. It
doesn’t accept the evidence of Hazrat Hasan, the grand companion (sahabi)
because it is not in accordance with the principles of justice. The decision goes against
the Ameer-ul-Momineen. This is Islamic principle of justice. For this reason the outcome
was that although the jew won his case yet he was so impressed with this above board
justice that he declared that the armour belonged to Hazrat Ali. He recited kalima
and embraced Islam.
Yet another anecdote is eye opener. It happened
after the Khilafat-e-Rashida, in the middle of second century Hijra. Muslim rule
pervaded three continents. Muslim conqueror and the commander of the Central Asia -
Qutaiba bin Muslim - enters Samarkand with grandeur and displayed highest level of
morality. There, however, occurred some lapses in observing certain conditions that were
considered as mere formality. Some local Budhist citizens approached Qazi of the troops
with a plaint that during the conquest such and such conditions were ignored. Therefore,
all the process may be declared void and the army may be ordered to vacate the city. The
Qazi heard the complaints of the non-Muslims against the Chief of the Muslim army and
ordered that the city be vacated. Thus the city which was conquered by Qutaiba bin Muslim
was vacated, without demur, in compliance with the decision of his own Qazi. It was
announced throughout the city that if anybody sustained any loss during the whole process
he may claim compensation according to Islamic Shariah (Ref: (1) Historian Balazuri Futuhul
Baldan, Chapter Conquest of Samarkand, (2) Islam ka Qanoon Bainul Mumalik by
Mahmood Ahmad Ghazi, p.59-60).
In regard to the principle of democracy, all people,
from well known legal authority Prof Albert V.Dicey to Sir Ivor Jenning, agree to the
point that freedom of judiciary is essential for democracy. Judiciary is an institution
independent and permanent in itself and supreme in its own sphere. Parliament’s
function is to legislate and the judiciary’s function is to enforce and interpret it.
This holds good in the case of British parliamentary system. In the light of American
constitution its historical definitions, and in other countries where written
constitutions are in force, judiciary’s function cover not only enforcement and
interpretation of law but it also enjoys the powers to decide under the principle of
judicial review whether any law or governmental order is in accordance with the
constitution, or violates it. In America, chief justice Marshal settled this principle in
a case known as ‘Marbury vs Modison’ case. It was recognized as an absolute
principle of constitutional law despite certain reservations of the justice prone
governments of that time. When President Roosvelt tried to take revengeful action against
the supreme court for its declaring certain laws of his renowned ‘new ideal’ as
void and planned to increase the number of judges so as to appoint some of his liking, the
Congress refused to accept it. Thus collective support was attained for the supremacy of
constitution, freedom of judiciary and its judicial review.
Leonard Jason Lloyed in his book "The
Constitution" (published London, Francos 1996 pp.42-43) writes about the British
parliamentary system:
Though in our constitutional system parliament is
the supreme institution for legislation; courts, which are formed by judges, have the
power to see that laws are properly implemented. It is courts who decide on the vires of
laws and their legitimacy. Since parliament’s legislation can neither address every
human error and nor can it cover all unlawful deeds, it is, therefore, for courts to
interpret a law or even give direction for necessary legislation where there is either no
law or exists an ambiguity about its meaning.
Thus, judges themselves perform the task of
legislation. We have ‘common law’ which is simply based on judges’
legislation made on issues not found in Parliamentary Acts. Moreover, the exercise of
Judicial Review is an important means with the help of which court keeps government (and
even legislation, to an extent) in control. It is the field of judicial review which is
now making fast progress in our own country (i.e. Britain).
Lord Diplock has discussed the three basics of
judicial review i.e. to decide about a law whether there exists some element of illegality
in it, whether there was irrationality in it, or there is procedural impropriety.
We have cited this example from the British
parliamentary system only for the reason that our rulers repeatedly talk of parliamentary
democracy, otherwise it is a recognized fact that in America and other countries having
written constitutions, including India, the institution of judiciary is not only
independent and free but it enjoys the powers of judicial review. This judicial review is
not limited to laws only, but in different countries those constitutional amendments that
are not coherent with the basic structure of the Constitution, lie in its fold. In this
regard an important instance is India itself where the Supreme Court in a famous case
Kesavananda vs Kerala (AIR SC 1461-1973) which is commonly known as fundamental rights
case, settled this principle that parliament is not empowered to make any constitutional
amendment that runs counter to the basic structure of the constitution. It is because the
parliament is not constitution-making body. It can, however, exercise authority to amend
the constitution formed by the constitution-making body. Therefore any amendment that
distorts the constitution itself, is not an amendment rather it is constitution-making,
for which the legislature enjoys no authority. (The way our Prime Minister declared the
parliament as ‘Creator of Constitution’ is the result of ignoring this fact). It
was further explained by the Supreme Court in a case Indra Gandhi Vs Raj Narain (AIR 1973
SC 2294) and clearly decreed that it can never be the purpose of constitution-makers that
the Prime Minister should be made an oriental despot through a constitutional amendment.
Parliament’s authority for amending the constitution (Article 368) despite its overt
phraseological expanse confers only limited authority - not absolute authority. In order
to counter it, when Indra Gandhi added two amendments (clauses 4 and 5) to Article 368
through constitutional amendments, and thus ended the authority of the courts to declare
any constitutional amendment being counter to constitution, the Supreme Court in 1980 in
Mai Nirwamal case (AIR 1980 SC 1989) cancelled this amendment (42nd amendment) and through
it not only frustrated the claim of the parliament that it enjoyed unlimited authority to
amend the constitution but also refused to recognize its right that parliament can
restrict the powers of judiciary. This is the position of judiciary in a democratic
parliamentary system.
In the light of this discussion about the importance
and authority of judiciary in Islam and in democracy, let us analyse Prime Minister’s
speech wherein every parliament is declared as ‘constitution maker’ - one that
is supreme over all. All other institutions are being asked to act as assistants.
An excerpt from a paper, presented earlier by Mr
Khalid Anwar - a close aide of the Prime Minister and now the Law Minister - at a seminar
held in the Institute of Policy Studies, Islamabad and which is being published in an
under print book "Pakistan Secular or Islamic" ,seems to be pertinent and is
reproduced here:
"Judicial power is a fundamental aspect of
secular as well as religious constitutions..... It operates to restrain parliament from
transgressing their constitutional limits. There is nothing unusual in this exercise of
judicial power and, instead of considering it as usurpation of the powers of parliament,
it is indeed the exact opposite. It is an attempt to prevent parliament from usurping a
power which does not vest in it".
A misconception was being created as if the recent
row is between the parliament and the judiciary and that judiciary was aiming at grabbing
the powers of the Parliament. The instances we have quoted from the constitutions and
political systems of Britain, America and India are enough to prove that in a democratic
system real supremacy lies with the Constitution and the Parliament, the judiciary and the
government are the creators of the constitution and equally subservient to it. Each of
them is independent in its respective sphere but none is supreme over the other. Now to
call it a row between the Parliament and the judiciary is merely to confuse the matter.
The real problem in our country is that every government wishes to establish its supremacy
over the Parliament and the judiciary and to make them totally subservient. This is the
issue that poses greatest risk to the future of democracy.
From the historical point of view, we find that in
Britain there has been four hundred years long tussle for the supremacy of the parliament
but it had no concern with the judiciary. The actual contest was between the king and the
parliament. In the Glorious Revolution supremacy of parliament over the government was
recognized only academically. Government or management meant the king and his cabinet that
remained daggers drawn against the parliament. Practically the supremacy of the parliament
was established through a law in 1911. But it is a pity that later on things gradually
took a shape whereby the parliament in the British parliamentary system has since
practically slipped into the grip of the Prime Minister. Due to the party system
accountability of the government before the parliament is no more in its true sense. That
is the reason why in Britain itself where there are still innumerable ways to check the
government and hold it effectively accountable; for instance through free press,
independent judiciary, effective opposition, politics-free bureaucracy and hundreds of
constitutional traditions, the intellectual discussion rampant nowadays relate once again
to the restoration of parliament’s supremacy over the Prime Minister and the
government.
T. Benn in his "Argument for Democracy", (
London 1981 pp.18-19) presents a concept of constitutional premiership:-
"I have reached the conclusion that the range
of powers at present exercised by a British Prime Minister, both in that capacity and as
party leader, is now so great as to encroach upon the legitimate right of the electorate,
undermine the essential role of parliament and usurp some of the functions of collective
cabinet decision making ........ In short the present concentration of powers in the hands
of one person has gone too far and amounts to a system of personal rule in the very heart
of our parliamentary democracy. The Prime Minister and the party leader must be made more
accountable to those over whom he or she exercises powers, so that we can develop a
constitutional premiership in Britain. To transfer an absolute premiership into a
constitutional premiership would involve making some fundamental changes in its functions
comparable to those made over the years when the Crown was transferred from an absolute
monarchy into a constitutional monarchy. The arguments for change are based upon
experience of the way the present system works in practice.... a Prime Minister has the
power to get his or her own way."
In another recent publication "British
Politics: Constitutional Changes" (Oxford University Press, 1990) Professor D
Kavanagh broaches the subject saying particularly about the premiership of Margret
Thatcher, that the type of government existing in the United Kingdom can now properly be
termed as Prime Ministerial government (p.208). Such being the state of parliamentary
democracy in Britain, one can assume what must be happening in Pakistan where parliament
is practically ineffectual. All the powers are concentrated in the hands of the Prime
Minister. The cabinet is also under his thumb. Decisions are taken outside the cabinet and
the Parliament. From distribution of tickets for parliamentary representation to the
affairs of the state, from important international treaties to basic postings and
appointments (that go down sometimes to the level of police S.H.O. and Municipal
Councillor), all powers vest in the Prime Minister. This is not ‘parliamentary
democratic system’. It is rater ‘premiership system’, yet the hue and cry
is for the supremacy of the Parliament.
Our considered view is that the real problem does
not concern parliament and judiciary. The problem concerns government, rather Prime
Minister, and the judiciary on the one side and the Prime Minister and the Parliament on
the other. In this background the currently suspended 14th Constitutional Amendment was
conspicuous. The state of helplessness of the Parliament could be judged from the way the
13th and 14th Amendments were bulldozed through both the Houses. There was no
consultation, no discussion at national level and no proceedings in the Houses. In the
light of the 12 years experience gained by the writer in the Senate of Pakistan, it can
easily be said that the majority of members did not read the full text of the amendments
even once. Only under the orders of the Prime Minister, all the members wherever they were
in the country or all over the world, were huddled like mindless pets to Islamabad and
approval of such important constitutional amendments was secured within hours both from
the National Assembly and the Senate. This is the type of government which is a risk for
democracy and which makes the worst example of usurping the powers of the Parliament.
Through the 14th Amendment the grip of the Prime
Minister and the party leader over the ‘elected representatives’ was further
tightened. Changing parties for selfish ends and ‘lotaism’ is no doubt
against Islam, morality, nobility, conscience and democracy, but the persons who are
vociferous now in this regard, had been the real traders in this field and they thrive in
it even now. Despite all this it is a crime that one gets elected on the ticket of one
party and then shifts to other for selfish ends. This needs to be curbed. But gagging the
elected representatives, depriving them of freedom of expression in the Parliament and
ending their membership merely on a chit from the party leader, is the brute authority
both in the eyes of democracy and Islam and runs counter to the self respect of human
being and against the freedom of conscience of the best of creation. Islam allows every
body to differ from those possessing authority and declares Allah and His Prophet
(p.b.u.h.) as the sole standard of righteousness:
No doubt Islam does ordain for obedience to the
leader (Ameer) in well known matters binding also consultation (shoora). But it
denies the obedience of even the highest in matters of evil. Islamic system comprises
consultation (shooraiat) and democracy. Further, discipline is something different
from ban on expression, may it be within the party or outside the party. The purpose of
14th Amendment was to keep the elected representatives under the brute authority of one
person and then above all the party leader was the final authority. He could directly
write to the Election Commissioner for disqualification whereas earlier the procedure
according to the Political Parties Law was that the complaint used to be sent to the
Speaker National Assembly or to the Chairman Senate who was then to send it to the
Election Commissioner. The procedure adopted in the 14th Amendment is wrong;
freedom-frustrating and an ugly one, irrespective of its professed purpose that may be
very important. The palliative measure taken by the Supreme Court in this regard made an
excuse for stultifying the judiciary and branding it as protector of lotaism which
is the worst example of political goondaism! this consequently paved the way to the
awe-inspiring black November 28 when the apex Court was openly assaulted and the nation
and the world at large stood stunned.
The procedure adopted in democratic countries in
this regard is something between discipline and freedom. In the British Parliament only
the front bench that comprises cabinet or the second cabinet, is subject to certain
restrictions in expression of their opinions, although the differences even among
ministers become manifest inside and outside the parliament. But there is no restriction
on other party members who are called back benchers. They perform the duty of taking even
their own government to task. In the British parliament due to the dissatisfaction of back
benchers official resolutions were defeated five times during the four years period
(1970-74), 14 times in only 1974 and 29 times during 1974-75, but it was not treated as
defection. In important matter even party whip - compulsion to vote in favour of party -
is withdrawn and freedom is granted to vote according to one’s conscience. Tradition
of the British parliament is that after his election, a member is recognized in three
positions. One: as representative of his constituency wherein he represents the whole
population and not his party alone; two: country’s elected representative at national
level; and three: party’s M.P. A balance is maintained in all these three positions.
Only a change from one party to another is considered defection. Expression of opinion and
difference with the party leadership and even non-compliance of party whip is not
considered as defection. (see "The Changing Constitution" ed. by Jowel and
Olivu, particularly Chapter IV. "Modern British Democracy - Ideology and Action"
by Anthony H.Buch and Chapter V - Dawn Oliver - "Parliament and Political
Parties".
We would like to reiterate that real risk to
democracy in Pakistan is from dictatorial and autocratic type of rule that is being
promoted here in the name of parliamentary democracy and as a result of which both cabinet
and the parliament have become ineffective. A little obstruction has come in the way of
the unlimited powers of the rulers from judiciary. Therefore, attempts have been made by
every regime to chain down the judiciary and to keep it under thumb and the same fight is
still going on.
Real risk to democracy is this mentality and the
political culture that tolerates it. The distortion and independence of judiciary and the
supremacy and hold of the Parliament over the government. This can be possible only when
the entire political system and its pattern is changed, awareness about their rights and
responsibilities is created among the masses, the press performs its functions with
freedom and with responsibility, and new leadership emerges from amongst the middle
classes and the people. Parties should be organized on the basis of principles and
programmes and democracy be practised within the parties as well. Effective system of
‘Ehtesab’ and accountability needs be introduced. Rule of law and the
constitution and equality of all before law is established in the country practically.
Free press and independence of judiciary are very important components of this system.
Democratic activities cannot prosper without the safety and stability of all the
institutions. Unfortunately personnel cult has become so rampant that whoever comes into
power is considered to be indefensible. Although none is indispensable in this cosmos,
finality rests with Allah. Here it is apt to quote the example of French Prime Minister
Clemencheau who had brought conquest to his country during the World War. Cajolers termed
him ‘indispensable’, but he slapped them in the face replying: "the
graveyard is full of indispensable persons".
Those who are now attempting to harrow the freedom
of judiciary should know that it is very painstaking and nerve breaking task to build up
and to protect institutions whereas it is very easy to destroy them. Here we are
presenting an excerpt from an article of Mr Khalid Anwar to apprise him and all the
members of the Parliament. All we wish is that it opens their minds:-
"It takes decades, if not generations, for the
institutions to develop but the task of destruction can be swiftly carried out, coldly and
remorselessly in the span of a few h ours. What those who carry out this sacrilege forget
however is that they will not always repose in the chair of temporal power .... It is a
cruel irony and a monstrous fraud on the people of this country that the secular rules of
the Islamic Republic of Pakistan were snatching away from them the reality of
constitutional safeguards. The security of tenure which is the substratum of judicial
independence has been eroded and a baneful eye has sought to wither the flowering of the
tender bud of judicial rectitude. It is a matter of surprise that those who clamoured the
loudest for a free and independent judicial branch when they were in the opposition should
now launch premeditated assault directed against the citadel of justice. Or perhaps it is
not. Those who shout the loudest are not necessarily the sincerest. It is this, the
usurpation of judicial independence by executive fiat that should be of the profoundest
concern to those who believe in the ideal of a free and just society."
Future of democracy depends on the urge of the
nation and channelising of the ruling pattern of the leadership in right direction. In
this connection following matters are most important:-
First absolute and unflinching conviction in Islam
and avoiding ostentatiousness, hypocritic dealings and contradictions. One may like it or
not, it is not only academic but an historical fact that masses of the country want Islam
and no other system or pattern other than Islam can be enforced successfully among the
Muslims. That is why from practical point of view, Islam and democracy are inseparable. If
democracy means rule of law and leading the system of life according to peoples’
wishes and intentions, then democracy can be enforced through Islam alone. Enforcement of
Islam and pursuit of democracy are two facets of one activity. That is why the tussle
between Islam and secularism in Muslim countries resulted in dictatorship and fascist
systems and in no country the un-Islamic and purely secular laws could be enforced through
tyrannical authority of dictatorship and not through democratic support. Among thinkers of
the West, Prof Dr Wilfred Smith has acknowledged this fact in very clear terms that
Islamization can be implemented through democratic process and only the Islamic system is
in cohesion with popular will and consummation of their ambitions. (see "Pakistan as
an Islamic State"). Another teacher of philosophy, history and sociology, Professor
Dr Filmer Northrop, in one of his articles that was presented at a colloquium on Islamic
Culture in 1958 and printed this year by Prinston University, says while reviewing Turkey
and the Western countries, "I believe this is one of the reasons why such laws (i.e.
secular laws) are initially enforced by a dictator; therefore these cannot become part of
law-book as a result of mass movement because the masses stick to the old
traditions".
Therefore it is necessary that the tussle between
Islam and secularism is buried with absolute conviction. Whosoever believes in democracy
and wants it to flourish whether he belongs to this country or some other country, must
know that it is the requirement of democracy that Islam may not be made controversial and
that effective attempts be made din legal, social, educational, economic, cultural and all
other fields to enforce it. Our Constitution which is the basis of oath taken by all
functionaries, calls for it and this is also the call of the Supreme Court’s decision
of March 20. Those who consider the Islamic system as the requirement of their Faith (deen),
are treading the right path but those who have some reservations about Islam and Islamic
system, yet they are true to democracy and want to see the future of democracy to be
secure and bright, are duty bound to support Islam to honour the peoples’ will
instead of blocking its way. Otherwise this tussle shall continue and the constitutional
stability would not be attainable.
Second, a change is needed in the attitude of the
rulers and other effective political powers. Both the Constitution and the law are very
important, but constitutionalism and respect for constitution and law is something
different. Undoubtedly, the rectification of the Constitution and law is called for where
necessary, but most importantly there is need for implementing the constitution and the
law, settling matters according to the Constitution and moulding the practical attitudes
in consonance with it. Dictatorship, fascism and tyranny also take start from this point
when they consider themselves above the Constitution and law or attempts are made to make
the Constitution and law to abide by their will or to corroborate with them. Therefore,
unless attitudes change and ruling pattern as well as decision-making styles alter,
sovereignty of Constitution and law shall remain a dream. For bringing this change,
besides education, public opinion and social pressures, effective role can be played by
the press, the political parties and the workers and the judiciary. That is exactly what
is needed.
Thirdly, the pressing force of masses is the most
effective element for which large scale mass contact, creating among people awareness of
their rights and a feeling of their responsibilities is called for. Ultimately to mobilize
them in a way that it may become impossible for anybody to ignore peoples’
determination, ambitions, wishes and needs.
In this background, we consider the recent struggle
of the judiciary a good omen for the future of the democracy. Judicial activism is the
need of the hour and essentially the reaction of ignoring the Constitution and the law by
the political leadership. The way Justice Kiyani played a positive role during the Ayub
Khan’s Martial Law in boosting the wave of revival of democracy, similarly the
Supreme Court and its present head become instrumental in directing the country towards
constitutionalism and respect for law, since 20th March,1996. A study of history reveals
that our experience is not a solitary one.
1. In every walk of life consultation enjoys central
role, similarly in the judiciary an effective convention of consultation needs be
established. If fortification of judiciary is needed to save it from the intervention of
political elements, then these principles should be respected and adhered to within the
fortification as well, as they have been declared by Islam essential for the attainment of
justice, fairplay, happiness and prosperity. This purpose can be achieved through healthy
constitutional conventions. Lacking enough emphasis on this tradition brought the
unfortunate of division and rift with in the judiciary itself that could and must have
been avoided.
2. The dignity and respect for judiciary depends on
its just verdicts and its firmness and stability to stand by the right. But it is also
very necessary that the high tradition of respect, for each other, cooperation and mutual
trust among the judges of higher courts that has been our history, including the recent
past, should be maintained and strengthened. It is not an ordinary matter and never be
overlooked, because if the judiciary stands divided, there could be no rule of law.
Calling each other as ‘brother judge’ is not mere formality but it depicts deep
concern and the future of the institution. The difference of opinion that has been created
or if it existed in the higher courts is not a healthy state of affairs. It is necessary
for all to respect difference of opinion, conscience and the law. But there are norms both
for giving shape to the issues and for their expression. Honouring of these norms goes to
create beauty and balance in all matters.
3. ‘Ehtesab’ is equally necessary in the
judiciary so that it could put the nation to Ehtesab candidly and carries it out in the
most transparent manner. Judiciary is the institution which the nation is prepared to
accept even today as above board and blotless, despite the deteriorations whatsoever. It
is their longing and their desire. It is essential for the survival of democracy as well.
Therefore, judiciary should also take care of it within their own system.
4. Real success of the judiciary depends on
protection of Constitution and law but more so in protecting the common man in his day to
day life from oppression and providing him due justice. It is a fact that thousands of
cases have been pending in the courts of different levels since very long periods.
Thousands are rotting in jails because their cases have not been decided. Instances have
come to the fore in which by the time decision was announced the accused had been in jails
for much more period for crimes whose maximum term of punishment was few fixed years.
Delay in justice is as much injustice as violation of justice. Our judiciary should ponder
over this problem at every level. Our advocate should also not make money-making as the
only purpose of life. They should help and cooperate in getting speedy, less costly and
full justice. If a tree is recognized by its fruit then the success of our constitutional
institutions depends on the extent they fulfil the real needs of the people through their
fruit.
"Translation of Isharaat from
'Tarjuman Al Quran' for December 01, 97".
