Guest Blog by Amjad Malik
Public have silently spoken through ballot putting added pressure on our political clan who always fall a prey to pragmatism and accept defeat before even the battle starts. Lawyers moved, bench stood up, media bore with the bashing honourably but only the clan of Q did not move and surrender to public demand and in the end they fell badly from their throne as pride hath a fall. Now public with sheer wisdom have given the task to the new parliament to sort out the mess the country is in rather than boycotting or bringing an orange revolution which is in true sense a silent revolution where opponent is defeated though still alive.
I foresee many tasks which are coming before the new Parliament and I will divide in 4 issues, constitutional, judicial, Social, and nationalism. I will talk on first two in this essay. First and foremost task ahead is to liberate the Parliament from the unseen pressures and fears including Art.58(2)b. There is no doubt that we have mutilated the constitution badly into a position that its neither Islamic nor UK or US style, its a mixture of all three and its neither Presidential nor Parliamentary. Parliament needs to at once resort to constitutional overhaul to bring it back to the place where it stood on 12 October 1999, sooner it is done the better it is. We also need to determine the role of army in politics. Hamood ur Rehman commission was quick to depict our weaknesses earlier in 70s and in particular I quote one sentence from the report at Chapter 1, Para (9), according to Rear Admiral M. Sharif (Witness No. 283) who was the Flag Officer Commanding the Pakistan Navy in East Pakistan, said ” While learning the art of politics in this newly assigned role to themselves, they gradually abandoned their primary function of the art of soldiering, they also started amassing wealth and usurping status for themselves.” We need to decide, do we still wish to keep the role of army in our politics, if yes, Parliamentary defence committee could be broadened further giving more representation and say of army commanders in it. If the answer is negative, which to me is just, then Parliament may consider amending the Article 6 finishing the law of necessity and creating a free standing clause that any commander of armed forces who invades the parliamentary sovereignty and abrogate the Constitution will stand dismissed from his post of government service and SC will initiate the trial under Art.6 of the Constitution of 1973 forthwith and give judgement within 90 days and his deputy will take oath as acting commander of armed forces whilst the article 6 trial is pending. I think we are ignoring the development, India and Bangladesh have made to curb this tendency to coup de tat especially in the promotion of officers of the armed forces and these promotions from the rank of Lt. Colonel may be brought under Parliament ideally before defence Minister and Chief Executive, of course with the recommendation of their commander to bring the officers who are ready to die in the line of duty for their country to be accountable to civilian authority. It is similar to judges, higher officials of police and civilian machinery. There is no shred of doubt that Pakistan army is one of the finest and can do any task given the opportunity however, its past record of bringing in 4 martial laws in the short span of countrys 60 years life speaks for itself that there is a need of genuine thinking to make this organisation parliament friendly and new army commander with his wisdom and consultation must consider to compete with other armed forces in the region as well as bringing it to some sort of legal excellence, thus by default promoting the parliamentary form of democracy in the state of Pakistan.
Second most important task would be to create an independent judiciary which in true sense can act as a buffer zone between the power struggle of politicians and Generals and may act given the opportunity as an arbitrator to absorb all the shocks to the state and handle any tussle between the institutions in accordance with the law of the land and where provinces have a grudge with the other, it can safeguard the national interest. Looking at the scene very few legal stalwarts are left untarnished by the mighty, but still bar, bench and media can take this struggle further to strengthen the judiciary in true sense. Dream of independent judiciary though does not suit the rulers military as well as civil but inevitably is the key to stop military interventions in order to bring true democracy. However this independence does not come easy. Lawyers need to keep its ranks politics free and work hand in hand with the bench. A lawyers work must start from its professional service and must peak to the highest ranks of the bench. If lawyers wish to play a political role, they must continue their politics of electioneering, however to promote the fairness and independence they must consider not to act in dual capacity being an office bearer of a political party and elected member of bar thus avoiding unnecessary conflict of interests as there is a room of both interest ever conflicting. In that case either you can be loyal to one party or the Bar & cause of judiciary. Judiciary as an institution also requires financial autonomy, complete separation of power from executive, a crystal clear method of appointment of judges, and they must be held to account only by Parliament. They must be facilitated for their ongoing professional training and mentoring, personal security, as well as constitutional safeguard from executive man handling. Its a dream which has no complete answer and can only be achieved with the passage of time if necessary steps are taken. If our children in schools now study law and attain the right to judgeship after duly required qualifying criteria with the environment predicted only then we can say that the judiciary is on the sail to its freedom and independence. It is not liberated with one decision as happened on 20 July 2007 and it will not be liberated with one man as was the case with Justice Choudhary as still Nawaz Sharif was deported on 10 of September 2007 which shows the clear conviction of the establishment on the topic. Its an ongoing struggle which requires vision and political will to facilitate that atmosphere in which a judge can dispense justice. The image of detained judges with families is horrific one and its a night mare for rulers who have received their first instalment by way of 18th February election results and if the mandate is not accepted then people may take to street to embrace the detained judges and escort them with their full honour to their courts by force as rulers may not accept the power of vote and thats the language they are promoting might is right. Thats the way things are in General Mushrrafs Pakistan where government is constituted and run by force and people are coming to a stage where they will feel that judges need to dispense justice by force too, though the anomaly is very dangerous but someone should listen to the verdict of janta too the lonely voice of silent majority who always remain out of touch in the countrys national business. People wishes to see Quaid e Azams Pakistan in which judges are not detained, media acts free and Parliament is sovereign and army protects the borders of the country, thats for 4 million people laid their lives to bring this dream come true. Thank God Quaid e Azam Mohammad Ali Jinnah is not alive to see all this lawlessness otherwise he would have caught the collar of the ruler and would have said, what have you done to my Pakistan.
Amjad Malik is a Solicitor-Advocate of the Supreme Court (England) and a political analyst based in UK