While we celebrate the golden jubilee of the constitution of Pakistan, it is a moment of reflection for those who vow to create, interpret, and implement the constitution. The people of the country are badly suffering. While some are enjoying perks and privileges, and making fancy claims sitting in the glass house, others are dying for a bag of flour. The legislature, executive, and judiciary may be held equally responsible for the current state of affairs in Pakistan.
After a political struggle and dialogue, the 1973 constitution was born in the same parliament that is today defying the constitution and refusing to conduct the elections in Khyber-Pakhtunkhwa (KP) and Punjab in utter disregard of the constitutional obligation to conduct the same within 90 days from the date of dissolution of a provincial assembly. More so, the government’s executive branch is failing to provide fundamental rights to people. A majority is unable to live a dignified life in Pakistan – that is deprived of necessities of life, such as health, education, and employment. The right to life is seriously endangered. The judiciary is also failing to deliver timely justice to the people. Millions of cases are pending at each level of the judiciary without any substantive judicial policy or will to decide them. There is a lack of accountability in the legal profession.
The supremacy of the constitution is an essential feature of constitutional democracy. However, Pakistan has struggled to uphold the supremacy of the constitution since 1947. Civil and military governments as well as judiciary have undermined the constitution while claiming to enforce and interpret it. The judiciary has endorsed extra-constitutional steps, for example, Governor General Ghulam Mohammad (Maulvi Tamizuddin Khan case) in 1955, General Iskandar Mirza (Dosso's case) in 1958, General Ziaul Haq (Nusrat Bhutto case) in 1977, and General Pervez Musharraf (Zafar Ali Shah case) in 1999.
Focusing on the recent past, Pervez Musharraf took over the government in 1999 and issued a Provisional Constitutional Order (PCO) barring the courts from reviewing the acts of Musharraf as a self-declared chief executive. Violating their oath, several judges were asked to take a fresh oath to the chief executive. Those who refused were removed.
This coup was challenged before the Supreme Court of Pakistan, but the judges who had taken Musharraf's oath upheld the PCO. Musharraf made drastic amendments to the constitution through the 17th Amendment (including the revival of an infamous article, Article 58(2)(b), which the president had often used in the past to dissolve elected governments). When this amendment was challenged before the SC, the PCO judges upheld it in the Pakistan Lawyers Forum case.
Ex-Chief Justice Iftikhar Muhammad Chaudhry started taking suo motu notice of human rights cases. Feeling threatened, Musharraf told Justice Chaudhry to resign, but he refused, so Musharraf put him under house arrest. A presidential reference was filed before the Supreme Judicial Council (SJC) that was challenged by Chaudhry as malafide. The SC however restored him.
When a nationwide Lawyers Movement started against Pervez Musharraf, he passed another PCO in November 2007 with a fresh oath. An eleven-member SC bench passed a restraining order against the PCO in the Wajihuddin Ahmad case. These judges were put under house arrest, allowing judges who had taken the fresh oath to declare the findings of Wajihuddin Ahmad unlawful, upholding the PCO in the Tikka Iqbal Muhammad case.
These unconstitutional developments fuelled a massive lawyers' protest which eventually led to the restoration of deposed judges on March 17, 2009. Musharraf was subsequently made to resign and, in the Sindh High Court Bar Association case, the SC declared all of the actions taken by Musharraf unconstitutional. However, despite this struggle for the supremacy of the constitution in Pakistan, it has not materialised fully.
We are undergoing a constitutional crisis. The executive is defying the SC order to conduct elections in KP and Punjab as per dictates of the constitution. Those who make speeches in the parliament fail to appreciate the guiding principles and spirit in which the constitution was framed. The division among the SC judges on critical policy and constitutional matters, such as the appointment of judges in the superior courts, the discretion of the chief justice of Pakistan as to the hearing of suo motu cases and the fixation of benches is in the public domain. Amid this crisis, people are left at the mercy of God. Another Lawyers Movement is needed to uphold the supremacy constitution in Pakistan. We need independent judges to protect our constitution. We need politicians and lawyers like Muhammad Ali Jinnah who could fight the case of Pakistan and defend its constitution.
While we celebrate 50 years of our constitution, the people mourn the death of family members for a bag of flour. Is it not the death of the right to life? Should such tragedies not awaken the government and conscious of our policymakers?
All the institutions must demonstrate a credible commitment to the constitution and people of Pakistan. To have a bright future for our generation and a stronger country, the executive should abstain from subverting the constitution. Judges should read constitutional oaths before endorsing extra-constitutional measures and undermining the constitution while interpreting the same. The government needs to deliver to avoid wrath of the people. If peoples’ fundamental rights are not met, it would become an issue of national security. Thus, the constitution’s supremacy and peoples’ rights must be protected.
After a political struggle and dialogue, the 1973 constitution was born in the same parliament that is today defying the constitution and refusing to conduct the elections in Khyber-Pakhtunkhwa (KP) and Punjab in utter disregard of the constitutional obligation to conduct the same within 90 days from the date of dissolution of a provincial assembly. More so, the government’s executive branch is failing to provide fundamental rights to people. A majority is unable to live a dignified life in Pakistan – that is deprived of necessities of life, such as health, education, and employment. The right to life is seriously endangered. The judiciary is also failing to deliver timely justice to the people. Millions of cases are pending at each level of the judiciary without any substantive judicial policy or will to decide them. There is a lack of accountability in the legal profession.
The supremacy of the constitution is an essential feature of constitutional democracy. However, Pakistan has struggled to uphold the supremacy of the constitution since 1947. Civil and military governments as well as judiciary have undermined the constitution while claiming to enforce and interpret it. The judiciary has endorsed extra-constitutional steps, for example, Governor General Ghulam Mohammad (Maulvi Tamizuddin Khan case) in 1955, General Iskandar Mirza (Dosso's case) in 1958, General Ziaul Haq (Nusrat Bhutto case) in 1977, and General Pervez Musharraf (Zafar Ali Shah case) in 1999.
Focusing on the recent past, Pervez Musharraf took over the government in 1999 and issued a Provisional Constitutional Order (PCO) barring the courts from reviewing the acts of Musharraf as a self-declared chief executive. Violating their oath, several judges were asked to take a fresh oath to the chief executive. Those who refused were removed.
We are undergoing a constitutional crisis. The executive is defying the SC order to conduct elections in KP and Punjab as per dictates of the constitution. Those who make speeches in the parliament fail to appreciate the guiding principles and spirit in which the constitution was framed.
This coup was challenged before the Supreme Court of Pakistan, but the judges who had taken Musharraf's oath upheld the PCO. Musharraf made drastic amendments to the constitution through the 17th Amendment (including the revival of an infamous article, Article 58(2)(b), which the president had often used in the past to dissolve elected governments). When this amendment was challenged before the SC, the PCO judges upheld it in the Pakistan Lawyers Forum case.
Ex-Chief Justice Iftikhar Muhammad Chaudhry started taking suo motu notice of human rights cases. Feeling threatened, Musharraf told Justice Chaudhry to resign, but he refused, so Musharraf put him under house arrest. A presidential reference was filed before the Supreme Judicial Council (SJC) that was challenged by Chaudhry as malafide. The SC however restored him.
When a nationwide Lawyers Movement started against Pervez Musharraf, he passed another PCO in November 2007 with a fresh oath. An eleven-member SC bench passed a restraining order against the PCO in the Wajihuddin Ahmad case. These judges were put under house arrest, allowing judges who had taken the fresh oath to declare the findings of Wajihuddin Ahmad unlawful, upholding the PCO in the Tikka Iqbal Muhammad case.
These unconstitutional developments fuelled a massive lawyers' protest which eventually led to the restoration of deposed judges on March 17, 2009. Musharraf was subsequently made to resign and, in the Sindh High Court Bar Association case, the SC declared all of the actions taken by Musharraf unconstitutional. However, despite this struggle for the supremacy of the constitution in Pakistan, it has not materialised fully.
We are undergoing a constitutional crisis. The executive is defying the SC order to conduct elections in KP and Punjab as per dictates of the constitution. Those who make speeches in the parliament fail to appreciate the guiding principles and spirit in which the constitution was framed. The division among the SC judges on critical policy and constitutional matters, such as the appointment of judges in the superior courts, the discretion of the chief justice of Pakistan as to the hearing of suo motu cases and the fixation of benches is in the public domain. Amid this crisis, people are left at the mercy of God. Another Lawyers Movement is needed to uphold the supremacy constitution in Pakistan. We need independent judges to protect our constitution. We need politicians and lawyers like Muhammad Ali Jinnah who could fight the case of Pakistan and defend its constitution.
While we celebrate 50 years of our constitution, the people mourn the death of family members for a bag of flour. Is it not the death of the right to life? Should such tragedies not awaken the government and conscious of our policymakers?
All the institutions must demonstrate a credible commitment to the constitution and people of Pakistan. To have a bright future for our generation and a stronger country, the executive should abstain from subverting the constitution. Judges should read constitutional oaths before endorsing extra-constitutional measures and undermining the constitution while interpreting the same. The government needs to deliver to avoid wrath of the people. If peoples’ fundamental rights are not met, it would become an issue of national security. Thus, the constitution’s supremacy and peoples’ rights must be protected.