The resolution of March 23, 1940 paved the way for a separate homeland for the Muslims of India after a long-drawn struggle against colonial rule.
However, since independence on August 14, 1947, our state is still caught in various conflicts – economic disparities, disharmony between the centre and the provinces, poverty, apathy towards the less-privileged, militancy, religious and political intolerance, horse trading, ‘accountability’ (sic) for refusing to change party loyalty or being defiant, interference in judicial independence, corruption, endless debates about the real motives for the creation of Pakistan, witch-hunts in the name of ideology and undemocratic interventions in politics, just to mention a few.
Since its inception, Pakistan faced the daunting challenge of establishing true democratic polity based on constitutional supremacy, rule of law and equity. Long military rules and experiments of ‘controlled democracy’ denied the people of Pakistan their sovereign right of self-governance, for which many had lost their lives to secure independence from the British Raj.
The dictatorial rules muzzled all the state organs – especially the judiciary which became an approving arm for many unconstitutional rules. However, the defiance demonstrated on March 9, 2007 was a starting point that culminated in the restitution of judges on March 16, 2009. The apex court thereafter passed many judgements atoning for its past, but its decisions remain unimplemented, rather openly defied.
From 2009 to 2018, the Supreme Court took many suo-motu cases under Article 184(3) of the constitution. There has always been severe criticism from many quarters, especially those in power, that the judiciary is ‘transgressing its constitutionally-defined limits’. Unfortunately, political polarisation since then and selective accountability have diluted the valiant common struggle waged by all segments of society, most notably by lawyers, media, social and political activists, for restoration of an independent judiciary. People are not getting their fundamental rights and there is disillusionment about the ‘justice’ promised by the ruling Pakistan Tehreek-e-Insaf (PTI) with the help of coalition partners. It is a consensus that there is a need for rule of law and good governance and strict enforcement of the constitution, as these alone can put an end to the recurrent chaos in the state.
Our history is marred by anti-people and autocratic rules, military and civilian alike. The Asghar Khan case revealed the sordid events of our past: how the mighty tried to ignore and distort the people’s mandate. This was and still remains the main factor behind the collective failure of all to establish a democratic polity. The role of the judiciary in validating coups is lamentable as well. Like all other institutions, the judiciary in the post-independence period suffered due to weak democratic traditions, the fight between economic vested interests, the rivalry of influential politicians and the bitter power struggle between the landowner cliques and the civil-military bureaucracy.
As the ‘press and the nation rise and fall together’, the same is true for the judiciary. It is true that no organ of the state works in isolation from socio-economic-political conditions, but it is also a fact that the present-day Supreme Court is again faced with a historic challenge to prove that those who judge others have nothing to hide. Once the higher judiciary becomes transparent by voluntary declarations, the mighty will have to follow suit to prove the supremacy of the constitution.
In the wake of March 16, 2009, the nation was very enthusiastic about the dispensation of justice. All were expecting the establishment of representative democracy and effective accountability, but instead they witnessed mounting tension amongst different organs of the state. Administration and dispensation of justice in Pakistan has till today been a distant dream. In the wake of some decisions like: Chief Justice of Pakistan Mr Iftikhar Muhammad Chaudhry v President of Pakistan PLD 2010 SC 61, and Dr Mobashir Hassan & Others v Federation of Pakistan & Others PLD 2010 SC 1, the hope for rule of law, social justice and economic equality did temporarily emerge but was ruthlessly throttled by the ruling elites.
On the occasion of March 23, 2021 [the 81st Pakistan Day], we as a nation must make a resolve to ensure the supremacy of the constitution and strict adherence to rule of law. If no action is taken against the violators of the laws of the land, especially the supreme law of the land, then what is the meaning of the supremacy of the constitution?
It is time we revived the resolve of the founders of Pakistan for a true democratic rule and accountability of all – not just selective accountability of some politicians or of someone being seen as defiant. This process of accountability should be strictly as per law and across the board, fulfilling all requirements of Article 10A of the constitution.
The writer is an advocate of the Supreme Court and adjunct faculty at LUMS.