- While no one denies that members of the military sacrifice their lives for us, that does not mean anyone can abrogate the Constitution
A free, independent and impartial judiciary forms the bedrock of a democratic society. It plays the role of an umpire keeping the executive, and sometimes the legislature, in check upon the touchstone of the Constitution. If the judiciary of a country impartially dispenses justice, irrespective of whosoever is a party to a case, then the purpose of justice would indeed be served. It is the judiciary which is bound to avert any extra-constitutional steps taken in a particular jurisdiction. The judges’ oaths of office require them to stand up and be just no matter how high the stakes. Effectively, the law is what the judges interpret it to be. Though certain reservations, on the mode and manner in which subjective interpretations are made, can be raised, nevertheless, in general, a strong and independent judiciary plays a crucial role in sustaining a true democracy.
In Pakistan, unfortunately, the judiciary has always remained in the shadows, never too bold enough to step in and intervene where it was required to. Several times in the past the Constitution, under which the judges derive their power to be labelled as “lordships”, has been abrogated and not once did the judiciary intervene to rectify these treasonous acts. On the contrary, such acts have always been ratified by employing the infamous doctrine of necessity which virtually is treasonous in itself. I believe the words ‘aiding’ and ‘abetting’ in their literal sense would include any judicial decisions made to ratify attacks on the Constitution. History teaches us that the judges of the past have never been courageous enough to stay true to their oaths and have more often than not violated them.
The past cannot be undone, the doctrine of necessity used earlier cannot be overturned and history cannot be changed. However, as widely believed, nations prosper with time and mistakes are generally made to act as lessons for the future. The judiciary of the past may have made its fair share of mistakes in the past but the judiciary of today has left no stone overturned to learn from those errors. Judges of the past would have acquitted Mumtaz Qadri and convicted Aasia Bibi; the judges of today did just the opposite.
Nonetheless, the current judiciary has established its dominance by recent use of its pen. The overdue shift from Mr Justice Munir’s doctrine of necessity to considering abrogation of the Constitution ‘treason’ has finally been made. The symbolic nature of the conviction marks the beginning of a new era in the constitutional history of Pakistan; all are equal in the eyes of law. The dominance of the judiciary should not be misconstrued to be interpreted as a free license for the judiciary. Naturally, the judiciary is also required to act within the limits prescribed by the Constitution and any transgression should also be addressed with vehemence
In recent years, the judiciary of Pakistan has broken out of its shell and has emerged as a strong, independent and bold institution seeking to review all unconstitutional acts irrespective of the parties involved. The sentencing of General Musharraf was a turning point in our history which is tainted with occasional attacks on our Constitution. Even though the decision has not been well received in many quarters, a clear message has been transmitted; all unconstitutional steps taken would entail grave penal consequences, as provided by the Constitution itself. The special court did not shy away from sentencing a former military ruler in spite of him having the might of the military behind him. With the exception of paragraph no. 66 which, in the words of Mr Justice Shahid Karim, finds no basis under the law, the rest of the judgement elaborates the gravity of abrogating the Constitution and its consequences thereof. In particular, Mr Justice Shahid Karim has eloquently carved out the entire history forming the inception of treason and how it relates to General Musharraf’s actions.
Some might perceive it to be an attack on the military as an institution. However, such an apprehension is misconceived. The judgement does not attack the military as a whole but rather targets one individual who violated his oath. No one, including the judiciary, can be allowed to ridicule the guardians of our borders as whole. In fact, an attack on the military in itself would be unconstitutional. The warriors and guardians of our borders who ensure the citizenry’s comfort and sanctity within their homes, by spilling their own blood, deserves the highest of respect and not once has the same been brought into question. But when an individual acts out and seeks to abrogate the very Constitution under which all institutions of the country operate, then such individuals should be vilified not only by the judiciary but by the military establishment itself.
Making General Musharraf answerable for his crimes should not be perceived as an attack on the military establishment. Such notions endanger institutional harmony and promote hostility within the country. As disqualifying a Prime Minister and striking down of a legislation as being in violation of the Constitution, is not considered an attack on the executive and the legislature in general, the same way a judgement against a former military dictator should not be viewed as an assault on the military as a whole. The same way, questioning the legality of the army chief’s extension was not a strike on the institution, but rather a question mark on the vacuity within the law.
Nonetheless, the current judiciary has established its dominance by recent use of its pen. The overdue shift from Mr Justice Munir’s doctrine of necessity to considering abrogation of the Constitution ‘treason’ has finally been made. The symbolic nature of the conviction marks the beginning of a new era in the constitutional history of Pakistan; all are equal in the eyes of law. The dominance of the judiciary should not be misconstrued to be interpreted as a free license for the judiciary. Naturally, the judiciary is also required to act within the limits prescribed by the Constitution and any transgression should also be addressed with vehemence.
It would be a difficult task to analyse Pakistan’s progress this past decade as far as security, economy and politics is concerned but one can say with certainty that the decade which started off with the judiciary striving to revive and restore itself is leaving behind the judiciary as the strongest institution in the country, and rightly so. As for General Musharraf, only Allah knows what his actual fate might be but it once again reminds me of Faiz’s eternal words:
Jaza saza sab yahin pe ho gi, yahin azaab-o-sawab ho ga
Yahin se uthe ga shor-e-mehshar, yahin pe roz-e-hisab ho ga
