Constitution-leaking

cauldron
Jewel of truth has many facets. One looks at only a small part of truth. There
are many facets. However, the totality of truth remains enshrined in the jewel. We
make mistakes by studying one part and neglecting the plethora of fats retained in
the jewel. This is comedy of errors and tragedy of events.

Constitution of a nation reflects its ambitions, shows its approach and

demonstrates its will to achieve its defined goals. The Constitution of Islamic
Republic of Pakistan, 1973, in its preamble, among other things lays down that “the
independence of judiciary shall be fully secured.” Executive and legislatures have
not been specifically referred in the preamble. To achieve this ‘’statement of
objectives’’ provisions have been made . Distinct organs of the state were
created. They are the legislature, the executive and the judiciary. Respective sphere
of activity stand specified for them. Being bound by such limits, these organs are
not allowed to transgress their powers. Checks and balances stand provided. In this
way the Constitution was formulated to become and remain a vibrant system.

Since 1973, the Constitution was patched and polluted up for securing
personal benefits and powers for the individuals. It resulted in a smash-up of the
balanced system and more importantly of checks and balances contained therein.
Progressive power-chess damaged good-governance, ethics and fair-deal principles.
Steadily the population started loosing confidence in the system contained in the
Constitution, as visibly this system was infringed time and time again by its
custodians. This power-corridor violated the constitutional provisions and sub-
constitutional laws with impunity. The sanctity of laws was also undermined by
adopting constitutional-conflicting rules and laws and then giving such measures
constitutional blessing. Faith of the public was thus totally shaken. Due to personal
power struggle and for wanton governance, the country suffered not only
proportionately but also beyond it. Cartels emerged, regional groups were organized
and aggressive power politics took hold. Statesmanship became a scarce
commodity.

In this background the power usurpers started seeking support from different
regional, religious, ethnic and political organizations. This resulted in abdication of
good-governance principles. In-roads in the sovereignty of the state became
apparent. Mini states within the state are the objectives of interested parties. Writ of
government became rhetoric only.

A reference to the Supreme Judicial Council was sent against the Chief Justice
of Pakistan which resulted in boiling-off of the suppressed feelings of the elite and
then the public. It became the central point of expression of resentment against the
prevailing environment. The lid came off the kettle with a bang. Resultant
developments were sought to be curbed and stopped by certain groups through
threats, intimidation and naked show and use of fatal force. The public being fed up
with intimidations, exploitations and extortion found themselves cornered. They
retaliated as the matter had gone beyond limits. The society was being torn to
pieces. No-go areas were created in the country for political opponents and rhetoric
of good tidings lost their meaning.

The Supreme Court of Pakistan headed by Justice Iftikhar Muhammad

Chaudhry took upon itself the restoration of constitutional governance and law and
order situation. This conflicted with aims, objects and approach of the unitary
government of General Perviaz Musharaf. Justice Iftikhar Chaudhry was forced to
resign but he resisted. After demand of resignation, General Perviaz Musharaf was in
a quandary. He could not step back and accept the check by the Supreme Court
over his invalid, illegal and nation-defeating acts. The only way for him was to make
a reference against the Chief Justice of Pakistan to the Supreme Judicial Council. The
Chief Justice sought justice from the justice-loving Judges of the Supreme Court. The
Chief Justice of Pakistan stood rehabilitated with honor on 20th of July 2008. This was
the last straw on the back of the camel. Statedly the Chief of the Army Staff, having
no legal powers in this behalf suspended the Constitution, and as many as sixty
Judges of the higher judiciary were axed by invalid orders. Under the Doctrine of
Necessity, PCO Supreme Court and hand picked judges of Pervaiz Musharaf had
indemnify the unconstitutional, illegal and invalid actions of General (R) Perviaz
Musharaff. Although it is a matter of record that seven member Bench of the august
Supreme Court of Pakistan headed by its Chief Justice of Pakistan Iftikhar
Mohammad Chaudhry on 3rd of Novembers 2007 had restrained the judges of
superior courts to take oath under the PCO including the imposition of emergency
and promulgation of Provincial Constitution Order. Had this order been taken into
consideration by any person including the political parties?

In this back ground all the major political parties joined hands for efforts
towards restoration of judiciary as it stood on 2nd of November 2007, although
benefits stood derived from National Reconciliation Ordinance. Written promises
were made between them in the Charter of Democracy as well as Murree
Declaration. However, the usurper is trying very hard in conjunction with its
punters to break these solemn undertakings. Personal considerations are now being
highlighted. Loss of benefits through National Reconciliation Ordinance and loss of
power through use of Article 58(2)(b) of the Constitution of Pakistan, 1973 are being
hung as Damocles Sword on some of the main politicians. The nation is now
anxiously watching if these politicians are true to the nation or true only to
themselves.

All the above promises were thrown into air and unwarranted method was
introduced and purposed 18th amendment constitutional package had been handed
over the political parties. The purposed amendments in the Constitution revolved
around the tenure of Judges, thereby restricting the independence of judiciary. Such
action was not resorted to in Constitution 1956, Constitution 1962 and the
Constitution 1973 as it stands today. Article 270AAA and 270CC are directed to safe
guard the illegal actions of the President and the executives. These and other
purposed amendments are directed to create indemnity for the past
unconstitutional, invalid and illegal orders, ordinances, etc. Thereby giving a clean
slate to General Musharaf. It is a reward to him for enforcing the invalid National
Reconciliation Ordinance, etc.

The salutation requires deeper thought and better handling. The cohesion of
the nation to break the country and its population into warring-fractions, require
that confidence of the public may be restored and the leaking cauldron may be
repaired and restored. The approach towards national harmony by suppressing the
extortionists and terrorists organizations is the call of the day. The responsibility
rests upon the shoulders of the rulers that the Constitution must be followed in
letter and spirit. Autocratic, partisan and inept-decisions and approach is to be
given up. The population has to be made the master of their fate. The nation should
not be skinned to supply second skin to the persons trying to perpetuate their
powers.

The first objective approach is to assess as to why generally progressive

members of the society reacted, and the public followed suit. The ruler, who disdain
and infringe the law, cannot force the members of the public to abide by such
cracked legal constraints. A positive change in attitude and approach by the ruling
Junta may result in reducing the public tension, otherwise, the already existing
polarizations shall harden resulting in injury and weakness of the nation. A nation
can organize a legislature but the legislature cannot over step the limits of the
cauldron. A nation can set up a judiciary but the judiciary cannot survive unless the
executive and legislature willingly subject themselves to the judicial dictates.
Otherwise the system of judiciary would become an eye-wash because of
committing of sedition by the interested persons.

Members of the nation including the public, the judiciary and the executive
have to rise above themselves and think about the existence and future of the
nation of Pakistan. It is said that the greatest leader in history is one who knows
when to step down. God may bless our nation.

Mohammad Azhar Siddique, Advocate, constitutional advisor,

a human rights activist/public interest litigation lawyer and a
Chairman of Judicial Activism Panel, Media Advisor and
Coordinator to the Supreme Court Bar Association of Pakistan.
judicialap@gmail.com