Pakistan’s Judiciary, Executive, and the Parliament
They are all the same The only Difference is in the Names
Written: February 8th, 2001
I forget who it was who said "the power flows out of the barrel of a gun". Is Pakistan already a "Failed State"? Can we still do something to fix the fundamentals? Is the situation totally hopeless? Should I ask anymore questions? Do we have any answers to these questions? And if we don’t have the answers, will we admit that we don’t? The timing for asking such questions appears always ripe at least in the case of Pakistan. The most recent revelations, about injustices done to Mr. Justice Malik Abdul Qayyum of the Lahore High Court are revealing. How daring - the executive branch of the government routinely bugs the telephone lines of a Justice of the High Court. Even if all the allegations about Benazir Bhutto are correct and these revelations are complete hoax - it is still symptomatic of the fundamental problems. Here are the facts that no one can deny.1. The country at the moment is governed by a piece of paper called the "provisional order" that is temporary and the "real constitution" is enforced as per the whim of a few - shameful that it had to come to this. Shameful that the military was forced to take over. And shameful that the perpetrators have never been really punished. Clearly this implies a failed state.
2. Judiciary remains under the thumb of the executive branch, and blackmail and firing of the Judges and Justices remains a common occurrence. Their telephones are probably still being bugged. Clearly this too implies a failed state.
3. There is no Parliament. The laws are being promulgated under the provisional order by a few. Should I repeat again that it means a failed state?
4. The country is in a perpetual state of real war with India. The Kashmir front is draining the resources of the country - and the water supply of the entire country is at stake.
5. Roughly 70 percent of the people (more than 100 million?) are unable to write their names in their own language. There is no hope of eliminating this ignorance. This is the first pillar and on that basis too we are in a failed state.
Let’s ask a few more questions: How is it different from direct foreign rule? We say not one iota. Should we then conclude that the British, when they were ruling, were more righteous at least when it came to dealing among their subjects? Should we therefore draw the conclusion that we do not deserve to be an independent nation? Am I showing my frustration? Perhaps, but can anyone deny that we have miserably failed?
Then where are the bright spots? There are only two in our history of more than fifty years. The first is that by the foresight of founding fathers we received independence and then allied our selves in the cold war on the winning side, helping to defeat the Soviets in Afghanistan. The second is the achievement by all who mattered, thanks to their dedication, that Pakistan has the atomic Bomb buying us some additional time and keeping the would be belligerents at bay. How much time we have bought is unclear as the disintegration will come only from within - remember the debacle of East Pakistan. So where do we go from here? This article is too small to list all the steps that need be taken. Some in the government have probably seen and read my Urdu article "Ahya-e-Pakistan" in my book "Fikr-e-Frada" (Dost Publications - Islamabad - 1998). It goes into great detail on how to fix the fundamentals. Here we will simply point out one thing.
When a judicial body such as the Parliament passes a law, it goes through a process, which allows the Executive branch to enforce it. Unless the law is very simple it has several articles and each can be challenged in the court of law for its constitutionality. In most countries, before a law is passed, the "people" of that country have examined it in great detail. A country as large as Pakistan, social and political bodies, "the people", must challenge every thing that can be unconstitutional. More importantly, the executive branch must protect the essence of the constitution and any changes must be really required for the benefit of the people and in keeping with rudimentary definition of Justice. This is because in parliamentary democracy, the parliament is in essence an extension of the administration. Hence the independence of judiciary is far more important than let’s say in American style democracy. This wire-tapping is a blatant example of what is wrong with those infrastructure type processes. My thesis is that these fundamental processes have broken down, and military as well as civilian administrations have gotten away with murder without one person being brought to trial.
Thus the interpretation of the constitution is not based upon what the law ought to be or even is - rather it is what any "current administration" wants. In Pakistan, sometimes a law is changed for a day for the relatives of this or that to import this or that. Countries are not run like that. A complete inquiry into the wiretapping process and its legality under the "real constitution" must be ascertained and clearly allowed or outlawed. The situation must be analyzed and it must never happen again - we must work tirelessly to make the judiciary able, fair, and free from all pressures to disburse justice as per the constitution including any challenges to the laws passed by any administration.
There is also the issue of whether the current administration has reached the conclusion that both Nawaz Sharif and Benazir Bhutto are criminals and their time has come and gone. May be so - but the Judges and Justices in the criminal justice system must determine that - without any interference from the administration. The only thing that the prosecution can do is to provide evidence to the courts. The wiretapping of the Justices hearing the case is blatant injustice - it does not fall in the area of aggressive pursuit of justice by the prosecution.
We urge the government of Pakistan to get to the bottom of these allegations and begin the long process of fixing the problems in the infrastructure of the justice system itself, and let the people of Pakistan know the truth.
© Copyright 2001 Sifwat Ali. All Rights Reserved
