All public power is a sacred trust, which is to be exercised fairly, justly, honestly and in accordance with law—Supreme Court in Workers’ Party Pakistan & Others v Federation of Pakistan & Others [PLD 2012 Supreme Court 681]
The perpetual violation of laws, politics of revenge, resort to violence, acting against rule of law, cronyism, nepotism, abuse of public money, and promotion of corrupt practices by our successive rulers defy all norms of constitutional democracy. These undesirable practices, unfortunately, not confined to any particular political party, whether in power or opposition, create doubt about the very essence of what we called “democracy” in a country, named “Islamic” Republic of Pakistan. In theory, Pakistan is a constitutional democracy, but in practice it is an embodiment of kleptocracy.
Our history of dictatorial military and autocratic civilian rules, coupled with corruption and bad governance, has crippled the state during the last seventy-five years. Favoritism and authoritarianism prevail in our political culture and governance. Hence, if Imran Khan during his term as premier acted like a kleptocrat, the attitude of other heads of parties before and after him, when in power, had been no different.
In Pakistan, individuals dominate parties, moneyed power controls them, and they impose their opinions and desires on all members. What makes the situation more worrisome is role of religious parties. Although they do not get much of the popular vote, but their influence, due to nuisance value, is destructively significant. They exploit people in the name of religion, though their main agenda always remains self-aggrandizement.
Notwithstanding the rhetoric against corruption, the members of the National Assembly, provincial assemblies and Senate never discuss in their respective houses the terrible state of governance and ruthless abuse of public funds. They are collectively responsible for the mess the country is facing right now. From these members “what else one can expect” is a typical cynical response of an average Pakistani. The elected members think their rights have priority over those of citizens. After being elected, they give a damn to the rights of people and treat them as mere “subjects.”
As protectors of ruling elites—military-judicial-civil complex, businessmen-turned-politicians and absentee landlords—they are the main beneficiaries of the existing system. So, they, without any exception, want to preserve and defend the existing exploitative system that perpetuates the plight of the poor.
Due to the existence of an exploitative system and lack of constitutionalism, Pakistan has always been a battleground of various vested interests and members of ruling elites. This has now taken the most dangerous turn as the very viability of the state is now at stake due to perpetual political instability leading to economic collapse. The deadly spate of violence, after the arrest of former premier Imran Khan by the National Accountability Bureau (NAB) on May 9, 2023 from the compound of Islamabad High Court in Al-Qadir Trust case and subsequent 8-day physical remand by an accountability court, was the bizarre culmination of ruthless power game going on since vote of no confidence on April 10, 2022. On May 11, 2023, the arrest was declared unlawful by the Supreme Court of Pakistan.
The powerful in Pakistan not only make a mockery of laws, but also squander tax money for self-aggrandizement. They enjoy unprecedented tax-free perks and benefits, foreign visits and luxurious living at the expense of the national exchequer.
The dilemma of our existing polity was highlighted by the Supreme Court many years back in the case of Federation of Pakistan v Aftab Ahmad Khan Sherpao [1992 PLD SC 723] as under:
“The usefulness and the mandate of....an elected body under the Constitution have been defeated by continuous and widespread corruption including misapplication of public funds and `horse-trading', change of loyalties in violation of law by the holders of representative offices for political and personal gains, by the functionaries of the Government, local and statutory authorities functioning under its control."
It is worth mentioning that in the wake of Senate election on March 3, 2021 and allegations of corruption by rival politicians against each other, voters were disillusioned about the conduct of party leaders and elected representatives. They were stunned that the then Prime Minister in his televised address on March 4, 2021 admitted: “Many PTI members were bought.” This statement and leakages of videos of 2018 and 2021 of Senate elections of horse-trading discredited the entire system. After confessions by the Premier of electoral corruption, the culprits should have faced criminal proceedings but there were mere expulsions of defiant or allegedly corrupt members from Pakistan Tehreek-i-Insaf (PTI) by the Premier in 2018.
The menaces of corruption, horse-trading, and various financial crimes have persisted in Pakistan for decades. The issue is not acceptance of their existence, as done by was done by Imran Khan and others on many occasions, but how to uproot them. It is a matter of record that Mian Muhammad Nawaz Sharif, disqualified ex-Prime Minister of Pakistan, in a private gathering, reportedly said: “Even if my assets are not commensurate with my sources, it is none of your concern.” Coming from three-times elected Prime Minister, this was really shocking. Same was the attitude of Asif Ali Zardari, ex-President of Pakistan, when he told a show host, “the authorities will have to prove that I went to open fictitious bank accounts in the name of some milkman or sweetmeat seller, only then can a case be registered against me… Even then, I can defend the case… Yes, I have deposited money in this account, it is my wish." When the show host asked the former president, "What about the poor fellow who has no idea about any of this,” he responded: "Then it is his fault."
The above statements by two political leaders, once holding high public offices, testify to our decadent political culture as well as acceptance of corruption as a way of life. Are these leaders elected to openly challenge NAB by claiming: “you have no right to make us accountable as this right lies with the people of Pakistan.”
The prime institution in Pakistan for enforcing the rule of law and protecting the fundamental rights of the country's citizens, the Supreme Court of Pakistan, has also failed to perform its role.
The powerful in Pakistan not only make a mockery of laws, but also squander tax money for self-aggrandizement. They enjoy unprecedented tax-free perks and benefits, foreign visits and luxurious living at the expense of the national exchequer. The institutions that have to generate taxes, check corruption, make public officeholders accountable and safeguard public funds, are captive in their hands. It is universally accepted that democracy and rule of law go hand in hand and without transparency and accountability both remain mere clichés.
The prime institution in Pakistan for enforcing the rule of law and protecting the fundamental rights of the country's citizens, the Supreme Court of Pakistan, has also failed to perform its role. The silver lining that emerged in the wake of judicial activism in 2009 also proved to be another illusion. Some decisions of higher courts in the past were rightly perceived as a “threat” to “democratic” rulers as some of them disqualified under pressure from those who matter in the land. It is equally true that in the past many pro-people orders of higher judiciary were openly defied by men in power. One Premier refused to implement the following instructions of the Supreme Court of Pakistan given in Dr. Mobashir Hassan and others v Federation of Pakistan (2010 PLD Supreme Court 265 [commonly known as NRO case]:
“Since the NRO, 2007 stands declared void ab initio, therefore, any actions taken or suffered under the said law are also non est in law and since the communications addressed by Malik Muhammad Qayyum to various foreign fora/authorities/courts withdrawing the requests, earlier made by the Government of Pakistan for mutual legal assistance; surrendering the status of civil party; abandoning the claims to the allegedly laundered moneys lying in foreign countries including Switzerland, have also been declared by us to be unauthorized and illegal communications and consequently of no legal effect therefore, it is declared that the initial requests for mutual legal assistance; securing the status of civil party and the claims lodged to the allegedly laundered moneys lying in foreign countries including Switzerland are declared never to have been withdrawn. Therefore, the Federal Government and other concerned authorities are ordered to take immediate steps to seek revival of the said requests, claims and status.”
The same position, many apprehend, may emerge about the recent decision of the Supreme Court about elections in Punjab, especially after the law-and-order situation in the aftermath of arrest of former premier Imran Khan. Many earlier suggested to incumbent Prime Minister Shehbaz Sharif to learn from the conviction of Yousaf Raza Gilani, the unanimously-elected Prime Minister. By committing contempt of court, he not only lost his post but suffered disqualification which ended after five years. When he was convicted for not implementing the above order, the occasion was celebrated by the then Prime Minister, Mian Nawaz Sharif, elected for the highest executive post for the three time but later convicted in the Panama case. He was then seeking support of all political parties in Parliament to stand for “democracy!”
Later his brand of “democracy” was also exposed as that of Imran Khan and now the same is true for Shehbaz Sharif. In our context, the system is not of what is written in the 1973 Constitution of Islamic Republic of Pakistan. It is nothing but kleptocracy and the worst form of cronyism and authoritarianism!
Advocates of rule of law rightly argue that dispensation of justice for all, especially the deprived and less-privileged, is not possible unless the entire justice system is overhauled and elitist structures are dismantled.
Since the bizarre episode of March 9, 2007, when a second martial law was imposed by late General Pervez Musharraf, there still lurks a continuous tug of war between democracy and kleptocracy and cronyism and constitutionalism in Pakistan. Ruling elites and their cronies want a free hand to plunder the wealth of the nation, subjugate their own people, deny them human rights and ensure that there is no room for radical reforms in the society to empower the ordinary citizen. The process of change is a threat for ruling elites. They thrive on state resources, ruthlessly exploit the working classes and loot the wealth of nation with impunity. Billions looted by them are lying in foreign territories and any government representing the masses, coming into power, could take them to task for their crimes.
Advocates of rule of law rightly argue that dispensation of justice for all, especially the deprived and less-privileged, is not possible unless the entire justice system is overhauled and elitist structures are dismantled. Devolution of fiscal powers, justice and self-governance at grass root level, as envisaged in Article 140A of the Constitution alone can establish an equitable socioeconomic order, which is sine qua non of constitutional democracy. Pakistan has one of the worst court systems in the world. When state functionaries indulged in unprecedented brutality in Lahore on June 17, 2014, critics ask, why the judges did not take any suo moto action.
In Pakistan, the vast majority has no access to health, education, and dispensation of justice. The situation is lamentable, but use of violent means to change it all is also unjustifiable.
The defenders of the “system” need to reconsider their performance and ensure accountability of all. Those in power and those who protest against them must realise that at the heart of the concept of constitutional democracy is the assurance for citizens that their inalienable rights are going to be respected and nobody is exempt from rule of law. Change cannot be brought by mere sloganeering or political engineering. Democracy also cannot be established through electioneering alone. The existence of an effective legal system is essential for ensuring enforcement of rights of the people.
The rule of law is the principle that no one is exempt from the law, even those who are in a position of power. The rule of law can serve as a safeguard against tyranny, because fair, just, and impartial laws ensure that rulers do not become corrupt or despotic. Establishment of a welfare state is a cherished goal, and all political parties must realise that no positive change can be achieved through force and violent means or by resorting to rhetoric.
The prevalent system protects only the rights of elites.
It is true that the rich and mighty in Pakistan undermine democracy, the Constitution and state institutions with their wealth. However, it does not justify the use of force to capture power. Bringing about a positive change in the system is the collective responsibility of the society. Reforms are necessary to dismantle exploitative structures as in a true democratic set-up, the electoral process ensures dominance of the people over those who hold political offices. Non-democratic rule is no answer to our problems either. Military dictators have positioned themselves as saviors, whereas the reality is that under their rule, we lost one part of the country, suffered economically and politically, fundamental rights were violated, political workers were hanged, killed or exiled, just to mention a few.
Rulers betray voters when they deprive citizens of their fundamental rights. In Pakistan, the vast majority has no access to health, education, and dispensation of justice. The situation is lamentable, but use of violent means to change it all is also unjustifiable. The remedy for the masses is to resist all kinds of undemocratic actions and wage a struggle for representative and participatory democracy in which all the state organs discharge their functions within strict parameters and powers laid down in the supreme law of the land.
Implementation of Article 3 and 140A of the Constitution is a prerequisite for a sustainable democracy that ensures exploitation-free structures and a responsible three-tier government ensuring protection of rights of the people guaranteed under the supreme law of the land. The legislature is sovereign but the Constitution is supreme. Legislators exercise delegated powers given by the people within the framework of the constitution. We need a Pakistan where will of the people prevails. The prevalent system protects only the rights of elites. In order to establish representative democracy, pro-people forces should unite all exploited classes and their sympathisers for strict compliance of rule of law and enforcement of fundamental rights enshrined in the Constitution, democratically, and not through violence or use of unlawful means.
There is formidable resistance from our politicians against the establishment of an independent anti-crime authority, along the lines of the National Crime Agency of the United Kingdom, even though we follow Britain’s model of democracy. They know that such a body would expose their corruption and other malpractices.
The way forward is that political parties should be forced under law to file income tax returns disclosing names of contributions by members, donors and financiers. Once this is made mandatory, they would have no option but select for elections only those candidates having truthful tax declarations. The process of filtration within the parties is a necessary step towards transparent and fair process of electioneering as ordained in various provisions of the Constitution.