May 262008

By Rifaat Hamid Ghani

 NOT to speak of constitutional packages, generally a package is just, well, a package. Several items of varying worth are boxed together and some of the not-that-good gets by along with the more solid stuff.

An article the recipient might have chosen from the store could be left out of the package or come with slightly different specifications that make it unsatisfactory.
Pakistan, having had a 1956, 1962 and 1973 constitution (the last named having done 35 years allowing for time out in abeyance and suspension) now awaits a constitutional package. The deposed judiciary may be packed in with a broad constitutional amendment, the one making the other possible. Everyone is focusing on the judges, but what else may the contents of the package include?

For common and highly concerned Pakistanis, the package is under wraps until parliament unveils it. Perhaps there would not be enough public takers. But something happens to public representatives after they become parliamentarians. They can see the national interest or interpret the national mood rather differently from the public outside.

That parliamentary interest is a thing apart has been the trouble with democracy in Pakistan. At a point the phenomenon could also be blamed on the Eighth Amendment which gave presidents decisive powers. Yet, when Mian Nawaz Sharif obtained parliamentary consensus to revoke it, the way the government conducted its business was alarming enough to make people side with a usurping general.

Eventually, the Eighth Amendment’s lost power was reanimated courtesy the Seventeenth Amendment whose most significant provision was the one that helped out the un-retired General Musharraf as president. The Eighteenth Amendment seems to promise the general who is now retired but tripped over the constitution in transit, much the same; except that it extends personalised legal rescue service to many more.

Rumour has it that the package deems oversetting the constitution as treason. Isn’t that redundant? The 1973 Constitution was born with that provision; and the army chief who most lately usurped the functions of an elected and undoubtedly at the time highly unpopular prime minister is still playing at president devising ways and means to define the law for the rest of us.

But to focus on packaging. Oversetting is one thing, subverting (also being mentioned) another. Only the COAS commands the means to overset the constitution but any ordinary mortal may seek to subvert it. So anyone may be open to charges of subversion or abetting subversives from a vigilant ministry of the interior, defence, law, education, information…all answerable to the sovereign parliament. And that institution may no longer fear presidential monitoring as his power to dissolve parliament may be left out of the package.

That leaves judicial checks and balances. Perhaps after the constitutional package clears customs anybody supporting maverick lawyers could be termed a threat to law and order and a subversive element for national security and dealt with as such. Pemra, too, is due for a review.

Tiresomely independent media barons and journalists have often been regarded as overstepping different governments’ parameters of national security and maintenance of public order vis-à-vis the citizens’ right to know, to dissent and to freedom of speech and assembly.

We already see on the streets the repercussions of the application of law appearing to vary. A self-sanctioning refusal to abide by the law on the part of individuals pledged to uphold it is making a mockery of the concept of civic responsibility. The constitutional package is purported to circumvent the weaknesses and lacunae which allowed dictators and oligarchs to obtain endorsement from the superior courts.

But it may seat the deposed judges of the superior judiciary who practically demonstrated principled independence alongside judges expressly inducted after Nov 2, 2007, to suit General Musharraf’s preferences. If this is the transitional process it demands reorientation.

As a state Pakistan only has a history of 61 years. The federating units need sanctity in the constitutional agreement that binds. At this disturbed political juncture if the agreement is to open to amending review, wisdom demands the process be undertaken objectively and unhurriedly as a subject in itself.

The cause of the unconstitutionally deposed independent judiciary that checked and balanced executive caprice and interpreted the existing acknowledged law of the land, resisting mala fide efforts to refashion it for clearly limited political gain, is something separate. That judiciary represents the recovery of the violated principle of constitutionality. It safeguarded the rule of law already accepted and enshrined.

Unfortunately, democratically elected or otherwise, Pakistan’s legislature has often used its legislative powers in favour of vested interests and selective party gains. The deposed judiciary demonstrated why people could view it in good faith. People continue to hope the new legislature completes its transit likewise. It is too soon to be feeling that rhetoric and evasive tactics are cover for their reluctance or inability to come to grips with a non-sham democracy.

Pulsating with electoral success the PPP might well pour scorn on the suggestion of a fall from popular grace. It has a clear federal lead. Provincially, it is a strong second in Punjab and it is first in Sindh.

From within these prisms, the PPP could ask itself how it would react were an MQM-nominated governor of Sindh to make the kind of statement Punjab’s governor made after taking office about serving party interests from the vantage point of his new post. At least he was candid. The trouble is he heightened an unarticulated fear.

This may appear tangential to the subject of the deposed judiciary. But to what are people to look if the need to check and balance a freewheeling executive arm becomes more concrete? A narcissistic parliament? Cherry-picked judges? A discredited president?

Or the men he and partners in government appoint provincially as representative of the federation and the federal principle? Pakistan is lucky to have a deposed judiciary whose principled courage and legal ethic is acclaimed by the international legal fraternity. It wants it back.

Source: Daily Dawn, 26/5/2008

 Posted by at 1:22 pm

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