General Musharraf , no doubt is counting on the follies of the signatories of ‘Charter of democracy’ which is the core reason of his re launch from UK. He could not successfully achieve any one item of his 7 points agenda when he came in power on 12 October 1999 and he is now coming out as an expert on Pakistan or a statesman which is ironic to many. I think story is not that simple as it seems. People quickly forgets that he is the one who detained judges with their children, but what his successors did was unforgiveable. However they must be ready to face the music as they themselves saw him off with a ‘guard of honour’ and now his return is ringing an alarm bell to their ears as his claims may not be hollow.
First of all his statements on important national and political issues are creating embarrassment for the Executive which is struggling with its internal management issues. They some time are achieving some mileage and Musharraf issues a statement which is an attempt to say, ‘he was doing better on this front’. Well of course, he caved in meagrely before Richard Armitage and no politician can beat that record, hence Gilani seems not doing enough. He is a lone guarantor with western friends of the notorious ‘Nation Reconciliation Order’ which is a sigh of relief to the Presidential camp who is surrounded by many of the beneficiaries of that ‘NRO’ which is sub judice so far. It is ironic th at a little fish is threatened of exemplary punishment by superior court and big fish is laughing out loud as no one can do anything about it. Musharraf’s return is a solace to ruling party too. As long as he aspires to acquire the top slot of ‘Q’ league, he will keep the Muslim league vote divided and any unity attempt will remain in jeopardy hence no threat to current administration. Unless a miracle happens and a new elections are called which will dissolve the ‘Q’ like salt in water.
Judiciary is also looking at his possible trial with caution. As if the challenge to 270AAA is successful, the threat to the whole electioneering process as a result of which 18 February 2008 Parliament came into being may collapse. It will be testing case for Supreme Court where whilst scrapping 3rd November emergency (PCO), the Iqbal Tikka Khan’s judgment will be reviewed. How far Supreme Court will be able to keep the actions intact which were taken as a result of 3rd November 2007 emergency are questions of law and we do not have ‘legal magicians’ to help the court either. Critics are of the view that if Govt takes this case lightly, and do not consider the view of Chief Justice taken on the treatment of Justice Bilal and Islamabad High Court, then they will be shooting on their foot. They are allowing Parliamentary matters to go to Supreme Court which have the capacity to wipe out the whole system with ‘one order’. That happens when one disrespects the sanctity of vote and underestimate the power of parliament. It may not be too late yet, but certainly ruling party has missed the boat at the outset.
One strong argument by a few legal eagles that Constitution is supreme than that of Parliament seems flawed too. Its the people whose voice is heard by way of their representatives in parliament so the strongest are those who elect those who make that constitution. Hence Parliament who is the voice of the 170 million people is stronger and has the power to amend, cancel and scrap the constitutional provisions which are no longer required, and or defunct or are frustrated. If Parliament can give the constitution being the representative of the people, passes the constitutional amendments as per the wishes of the people, then it is stronger than anything or any document as it can change that document any time. All other institution gets strength from the Parliament and are run through the will of people which I am afraid is sometimes lost in the process in Pakistan. The argument to uphold constitution by way of judicial decrees is a beggar’s belief, and judiciary can never replace Parliament in legislative making functions. I think in current circumstances at best, media and judiciary can play a role of monitors so that system keeps running and chunking out good leadership and good governance aims are achieved. Any attempts to clean the ‘well’ before filling with water will take the whole system20down with it. Let the clean water filter the dirty water itself. The life is in flow.
Finally, as the issue of suo moto notices is creating a realisation in masses of a parallel executive system available where a complaint is effectively handled other than the executive itself and executive is not given enough time and opportunity to act on any complaint is a matter for Parliament to debate too. I personally am in great favour of such judicial power in colonial style governance system where resources are less and democracy is in its early stages, however, Parliament may consider amending the way ‘suo moto’ notices are taken in practice and procedural applications of it as to how best to use this constitutional facility. Suo moto ac tions may be at the initial stage are limited to direct a report of executive on each complaint and action within limited time frame and only then a direction is given after an expiry of that time period. All govt officials may be allowed to attend court through govt attorneys and affidavits are filed as evidence in response to an enquiry to attain smooth sailing of administrative work. It is best if suo moto actions are referred with directions to respective higher courts for action and report is furnished within 6 months of the referring to Superior court to avoid unnecessary controversy regarding Apex court. This is vital too in order to keeping appeal rights intact before Supreme Court as well as ensuring the administration of justice. I am sure Supreme Court will be looking into it at greater details in its new judicial policy as there is always a room of miscarriage if the matter is not appealed and is heard only once as no one is ‘complete in wisdom’, as we need collective wisdom. Pakistanis have barely enjoyed the fruits of their struggle for democracy and democracy is under attack, let’s hope common sense prevails on all fronts. We have no fears from others; system is at threat from within. We ourselves are to be blamed.
Amjad Malik is a Solicitor-Advocate of the Supreme Court of England & Wales and a chair of Association of Pakistani Lawyers (UK)