Pakistan’s Real Issue?

 

Pakistan’s Real Issue?

Dr. Umar Khan
Friday, June 27, 2008

 

For more than a year, the judges’ issue has gripped the nation. Despite the heavy-handedness of the previous government and the political maneuvering of the present one, the issue refuses to be sidelined.

 

The latest popular narrative is that this is a war of egos between General Musharraf and the deposed Chief Justice (CJ). Whether this narrative is being deliberately promoted or the nation is simply tempted to reduce a complex issue to a personal conflict is unclear. Unfortunately, even some respected writers have propagated this view.

 

But is the issue really that simple? Is the nation being held hostage to the egos of two individuals? Nothing could be further from the truth. Several fundamental principles are at stake—principles that much of the world settled long ago. We are still struggling to establish them in Pakistan, but better late than never.

 

The real issue is who has the right to rule Pakistan: the people, through their collective wisdom embodied in the Constitution, or the man holding the biggest gun? Is the Constitution the foundation of our laws, or is it subordinate to the whims of individuals who violate it at will? Beyond this central question, numerous other issues are directly or indirectly linked to it.

 

Pakistan has the proud distinction of having been created by a lawyer through a democratic and constitutional struggle. The colonial masters, despite their oppressive rule, generally observed established procedures and laws—a tradition our subsequent rulers conveniently chose to ignore.

 

Despite these proud beginnings, the nation fell into the trap of unelected government functionaries interfering in politics, in violation of their oaths, soon after the death of the Father of the Nation. Gradually, this practice became more entrenched until breaking one's oath was not merely tolerated but often considered desirable, offering substantial rewards to those who did so. Thanks to this impunity, unelected functionaries ruled Pakistan directly for 33 of its first 50 years and exercised influence over it indirectly for much of the remainder.

 

Two related failures of compliance lie at the heart of this problem. The first is the inability—or unwillingness—of our dictators to comply with the Constitution or any written law. General Iskander Mirza could not abide by the Constitution of 1956, which had been promulgated under his supervision, and chose martial law instead. A decade later, General Ayub Khan abrogated his own Constitution before handing over power to General Yahya Khan. General Zia-ul-Haq, after substantially altering the 1973 Constitution through the Eighth Amendment, also found it difficult to respect the very constitutional framework he had reshaped.

 

Rumors abound that, had he lived longer, Zia would have discarded it altogether in the name of Islam. General Musharraf's experience followed a similar pattern. After thoroughly altering the Constitution through the Seventeenth Amendment, he apparently found even that version unacceptable. On November 3, 2007, he suspended the Constitution and imposed emergency rule, precipitating the latest judicial crisis.

 

The second failure concerns the willingness of citizens to submit to illegal usurpers and their illegitimate orders. Such compliance encouraged successive dictators to wreak havoc on the country and its laws.

 

The opposite of bravery is not necessarily cowardice; it is often compliance. As a nation, we have demonstrated far too much of it. No one can abuse an individual or a nation indefinitely without, at the very least, benefiting from the silence and acquiescence of those being abused. We have repeatedly tolerated the excesses of our dictators, and it is hardly surprising that Pakistan now faces enormous problems on multiple fronts.

 

For years, this arrangement seemed to work in favor of the powerful. Many commentators preached submission as our inevitable fate and ridiculed those advocating resistance as immature, idealistic or impractical. That began to change on March 9, 2007, when the Chief Justice refused to submit to overwhelming executive pressure.

 

It was a defining moment in our national history. The country's power dynamics began to change, and civil society rose unexpectedly in defense of the rule of law. The forces of the status quo were compelled to retreat. The deeply entrenched dictator resisted, ultimately resorting to the extraordinary and unlawful measures of November 3, 2007. These resulted in the removal of approximately 60 judges and the imposition of a constitutional order that subsequently required another sweeping indemnity.

 

No self-respecting nation can afford to let individuals unilaterally rewrite its Constitution and imprison an entire judiciary. The Constitution, the foundation of all laws and institutions, is a sacred national compact and must be treated accordingly. Like other constitutions, ours provides for the punishment of high treason for those who abrogate or subvert it through unconstitutional means.

 

It is time we reconsidered our excessive submissiveness and accorded the Constitution the respect it deserves by implementing it in both letter and spirit, including its long-neglected Article 6. We must also determine whether our uniformed security institutions owe their allegiance to an individual or to the nation and its Constitution.

 

The lawyers’ movement, which began on March 9, 2007, and entered a new phase on November 3, achieved a great deal. The pressure it generated helped force Musharraf to relinquish his military uniform. Civil society also helped secure relatively fair elections under a government with a history of controversial electoral practices.

 

The movement's sustained pressure has further compelled the political establishment to consider strengthening Parliament. It has also significantly curtailed the power of the Presidency, leaving Musharraf in a markedly different position from the one he occupied before March 9, 2007.

 

The prevalence of monarchies across much of the Islamic world has contributed to many of the problems these societies face today. Such systems have often prevented democratic values from taking root, leaving political institutions immature and fragile. In these monarchies, the written law has frequently been subordinated to the ruler's word, which is treated as law in itself.

 

Unfortunately, these attitudes remain deeply entrenched. They help explain why credible, constitutional democracy has struggled to take root across much of the Muslim world. This failure has damaged the image of Islam and Muslims more than almost anything else, because it has obscured the democratic and consultative principles that ought to inform public life.

 

Although the judicial movement has achieved remarkable success, it must maintain pressure to accomplish more. The challenges remain formidable, and every one of them must be overcome. Despots and aspiring despots cannot tolerate an independent judiciary; their designs must therefore be resisted.

 

The supremacy of the Constitution must be established, and the institutions it creates—particularly Parliament and the judiciary—must be accorded the authority and respect they deserve. Unfortunately, these institutions do not command armed forces of their own and must rely on their constitutional legitimacy. Making that legitimacy effective requires an alert, organized and mobilized civil society.

 

We must therefore continue our struggle in support of Parliament and the judiciary.

 

The lawyers’ movement is not about the ego or career of any individual. It is about establishing the rule of law in Pakistan. The road is long, and the journey is difficult, but the struggle must continue. After all, the ripest peach hangs highest on the tree.

 

We must strengthen our institutions if we want to make Pakistan strong, stable and prosperous. This is precisely what distinguishes ordinary nations from great ones—and Pakistan is no ordinary nation.