The Constitution is a social contract between the people to establish a union and live together as one nation. The people may belong to various ethnic, cultural, tribal, religious or linguistic origins or backgrounds, and may be residing in diverse geographical regions or territories. Notwithstanding such distinctions and variations, they decide to form one state or nation. Statehood or nationhood is inconceivable in the absence of such an agreement. And whereas it is generally true for all modern states or nations, it is especially true for a nation-state, such as Pakistan. And arrived at, with the free will of the people, the contract carries enormous sanctity and must be fully observed.
The Constitution prescribes the structure of governance, based on the principle of “trichotomy of powers”, by setting up three organs, namely, a legislature, executive and judiciary. Their composition and powers or functions are elaborated, together with placing necessary “checks and balances” on their powers, so as to prevent the concentration of power in any one organ or institution, which leads to despotism. As Lord Acton observed, “Power tends to corrupt and absolute power corrupts absolutely”. The Constitution further guarantees essential civil, economic, social and political rights, including security of life, liberty, dignity, property and protection against illegal arrest or /detention, maltreatment and discrimination. It further provides essential freedoms, like freedom of thought, expression, movement, assembly and association. Such safeguards are essential for the development of a balanced human personality and advancement in life to become a useful and productive member of the society.
The system of governance thus established is essentially democratic, which the former US President, Abraham Lincon, described as “government of the people, by the people, for the people”. Thus, the elected representatives of the people make laws, which are enforced by the executive and disputes or controversies are settled by the judiciary. The democratic system therefore warrants adherence to the norms and principles of the constitution and “rule of law”. A system of governance, devoid of such attributes, is brute force without legitimacy or legality.
Violation of the constitution constitutes a most serious offence for the authorities and public office holders. The perpetrator, no matter how high in rank or status, is liable to severe penalties. Thus, Article 47 of the Constitution of Pakistan provides for the “impeachment” of the head of State (President of Pakistan) on the charges, inter alia, of violating the Constitution. In addition, due to successive abrogation of the constitutions by the Chief of the Army Staff (COAS), ending on the ignominy and humiliation of abject surrender by our troops in 1971 and dismemberment of the country, a new clause (Article 6) was incorporated in the 1973 Constitution. The clause stipulates that any act or attempt to abrogate, subvert or suspend the Constitution shall constitute the offence of “high treason”, punishable with death. The penalty is also applicable to a person, who aids or abets or conspires in the commission of such act.
Furthermore, “loyalty to the State” and “obedience to the Constitution”, is declared to be a duty cast on every citizen of Pakistan. Besides, the Constitution obliges all constitutional authorities, including the President, Prime Minister, governors, chief ministers, federal or provincial ministers, federal or provincial law makers and chief justices and judges of the superior courts, to take a solemn oath to “preserve, protect and defend the Constitution” and perform their functions honestly and faithfully in accordance with this basic law. The members of the armed forces also take oath to “uphold the Constitution” and bear true faith and allegiance to Pakistan. They further swear “not to engage themselves in any political activities”.
Notwithstanding such prohibitions and solemn affirmations to remain faithful to, and uphold the Constitution, violations of, and deviations from Constitution, abound, The successive heads of the Army from General Ayub to General Yahya, General Zia and General Musharraf, though guilty of committing the abominable offence of “high treason”, escaped the penalty. The impunity, so enjoyed by them, encouraged their successors to openly indulge in politics, by making political alliances and formingor removing governments. It is true and so acknowledged by the confession of General Bajwa, a few days before his retirement.
The violations go on unabated and no one at the helm of affairs, dare take action, notwithstanding their oath to “preserve, protect and defend the Constitution”. Lacking integrity and deficient in character, the political class (with few honourable exceptions), is weak and vulnerable, fearful of being dethroned or their corruption scandals and/or immoral conduct being exposed by the intelligence agencies! So perforce, they are at the beck and call of the Establishment. Further, most of the politicians have the dubious distinction of collaborating with the martial law regimes. They not only welcomed the dissolution of Parliament and dismissal of government of their opponents but even joined the cabinets of Chief Martial Law Administrators (CMLA).
In short, it is a sad day for the country, The Constitution is mauled and mutilated. The authorities and institutions, responsible for its enforcement and implementation, have a hand in the act of violation. Beaten and bruised, the Constitution calls for help. Need one mention the saying of a French statesman, Georges Bidault, who said, “The good or bad fortune of a nation depends on three factors: its constitution, the way the constitution is made to work and the respect it inspires”. That our nation falls short of the benchmark, is most disturbing and disappointing.
The judiciary equally shares the blame. Every time there was a coup d’état, the Constitution was abrogated or held in abeyance. It was quickly followed by issuing the “Laws (Continuance in force) Order”, to let the country be governed under martial law orders and regulations. The vires of such action always came under challenge in the Supreme Court. And just before embarking on the case, the judges of the superior courts were commanded to take a fresh oath under the Provisional Constitutional Order (PCO), or else cease to remain so. Again, with few honourable exceptions, the judges raced to line up for taking the fresh oath, in supersession of their (earlier) oath on the Constitution. Thus, they too were guilty of being unfaithful to their sworn oath to “preserve, protect and defend the Constitution”.
Then they almost always validated martial law, by relying on the pernicious “doctrine of necessity” or perverse “theory of revolutionary legality”. As such, they too indeed collaborated with the military authorities. Thus, the names, like Chief Justice Muhammad Munir, Chief Justice Anwar ul Haq and Chief Justice Irshad Hassan Khan, generally evoke sentiments of dislike and disdain from the Bar or general public.
Such sad and sordid account of the political and constitutional developments, begs for an answer to the current politico-legal imbroglio, facing the nation! It is holding elections within 90 days in the Punjab and KP, as per the constitutional mandate. The PDM is in denial mode, thus staging theatrics to evade elections till the time it can return back to power. The Cabinet, Parliament and parties of the PDM alliance are united on this point. They have already defied the April 4 order of the Supreme Court on holding elections within the specified period of 90 days. This is a brazen act of violation, nay, subversion of the Constitution. It even earned the penalty of contempt of court.
Thus, no sooner was the order made, than the Government, conjointly with Parliament, resorted to multiple tactics: targeting the Supreme Court, including its Chief Justice and few other judges; disclosing the salaries and other perks/privileges, granted to judges; summoning its Registrar to appear before the Public Accounts Committee; revelations of telephone conversations between a judge and a political leader as well as between two ladies, one of which is alleged to be the mother-in-law of the Chief Justice; and finally, arranging a show of power in front of the Supreme Court to intimidate and browbeat the judges.
Perhaps, the pressure tactics worked! Thus, thereafter, there has been a marked change in attitude. The order of 4th April of holding elections within 90 days in Punjab, is all but forgotten. The period of 90 days is also over. No more is heard the often-repeated threat of, “otherwise the law will take its course”. Long and liberal adjournments are granted. And this is despite the fact that no stay has been given at the current review/appellate stage of the hearing of the case. It appears as though the Court action is in sync with the PDM resolve to dilly-dally and thwart any order for holding elections.
In short, it is a sad day for the country, The Constitution is mauled and mutilated. The authorities and institutions, responsible for its enforcement and implementation, have a hand in the act of violation. Beaten and bruised, the Constitution calls for help. Need one mention the saying of a French statesman, Georges Bidault, who said, “The good or bad fortune of a nation depends on three factors: its constitution, the way the constitution is made to work and the respect it inspires”. That our nation falls short of the benchmark, is most disturbing and disappointing.
