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 subconstitutional 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