Another constitutional farce?

If those who claim direct access to the powers that be are to be believed, the country is set for another bout of ‘wise men’ deciding that the constitution of the country stands in the way of what they see as the national interest.

Several chiryas are chirping away about the plan to get the courts to suspend the constitutional requirement to hold elections within 90 days of the dissolution of an assembly. The caretaker setups in Punjab and Khyber Pakhtunkhwa are to continue, so they say, with the electorate denied its constitutional right to elect a representative government. An economic mess is to be turned into a constitutional farce. Yet again.

This is a loop we have been through several times. Each generation seems to throw up a bunch of powerful individuals, and sundry cheerleaders, with several lawyers, economists and journalists at the forefront, convinced – without evidence – of their wisdom and ability to steer the nation to glory only if they were to be freed of legal and constitutional restraints. While glory has remained elusive, what we have is an abandoned people whose voice was muffled through the decades but never entirely silenced.

Why the courts have colluded remains a mystery to this writer. At what point in life and at what station is the desire for ‘advancement’ satiated and fear of the unknown overcome? Former CJ Nasim Hasan Shah’s memoirs provide evidence of a hovering fear during the Bhutto Case that resulted in the deposed prime minister’s execution by judicial verdict, but no elaboration.

As the Asghar Khan case ended in the Supreme Court in 2012, sixteen hesitant years after it was filed by my client the air marshal, the court admonished former COAS Aslam Beg and former DG ISI Asad Durrani for having violated their solemn oaths not to interfere in the political process and of having impeded the working of the constitution by acting to create a favoured and backed group of political hopefuls in the general elections of 1990.

During the hearing I was asked by the chief justice to read out aloud an affidavit filed by a retired brigadier who had served in the MI in 1990 and had distributed funds at the behest of General Durrani. The affidavit, consistent with the averments made earlier by General Durrani, declared that it was his view and of those higher than him that Benazir Bhutto had become a national security threat and her re-election could not be allowed. Hence the operation to plunder a nationalized bank in order to distribute funds to create a political bloc against the Mohtarma. As the court rose, one of the disgraced men mumbled under his breath, within my ear shot, ‘I would do it again a hundred times.’

More than a decade later, the judgment in the Asghar Khan Case remains an impotent relic. Pleas that action be taken against the delinquents in accordance with the judgment of the highest court of the land remain unheard. Impunity has bred inevitable contempt for the constitutional process.

In his assiduously researched book ‘The Destruction of Pakistan’s Democracy’, Allen McGrath recreates the scene that accompanied the dissolution of the first Constituent Assembly on October 24, 1954 – three days before the finally agreed upon text of the Constitution that was drafted over seven tortuous years was to be tabled and approved. The high command had gathered around the ailing and nearly incapacitated governor general Ghulam Muhammad. The hapless prime minister Bogra was summoned to the governor general’s residence. He was told of the fate of the assembly and ordered to carry on as the prime minister till further orders.

The next morning the liberal commentariat was cheerful. The Pakistan Times, then supposedly the last refuge of the left liberals, heralded with satisfaction the new order. Soon the One Unit was created through an order of the governor general. The evisceration of provincial identities in West Pakistan to ‘balance’ the numerical superiority of East Pakistan was embraced by most as an act of stunning constitutional brilliance. Even the East Pakistani icon Hussain Shaheed Suhrawardy, who was to soon become yet another puppet prime minister, did not demur. Meanwhile, the Baloch leadership more than protested. An insurgency was kindled in unseen hills far from the centres of power.

Molvi Tamizuddin, the speaker of the demised assembly, was pretty much on his own when he approached the Sindh High Court to lodge his petition. The West Pakistani political and intellectual elite was firmly aligned behind the new ‘ground reality’. Molvi Tamizuddin’s counsel, the tireless English advocate of lost causes Pitt, who had represented Mandela, had to enter the country in disguise in order to avoid orders for his deportation on arrival. Molvi Tamizuddin’s short-lived victory before the high court bench headed by CJ Constantine was to become merely the contextual back drop to the now lamented – then hailed – judgment of the federal court headed by CJ Munir, Cornelius J dissenting, that stamped judicial approval over what was wrought in a murky room.

In the decade that followed, with a martial law approved by the Supreme Court as a successful revolution, much constitutional tinkering was done. The 1962 constitution given by the martial law administrator to his subjects was originally without a fundamental rights chapter and denied universal adult suffrage. The people at large could not be trusted. The leading legal minds of the day who were the hired scribes of the text, some of our most venerated names, wrote articles saying that Islam did not recognize fundamental rights. The poet Jalib gave voice to the people’s muffled disgust. Even the general had to buckle and fundamental rights were added at least to the text of the constitution. The lesson that should have been learnt was not: no general is omnipotent.

In his memoirs of a remarkable and long life ‘Between Dreams and Realities’, Sartaj Aziz Sahib recalls the enthusiasm in the planning division in Islamabad where he worked as part of a team of world class economists led by Dr Mahbubul Haq through the Ayub era’s Decade of Development. They thought they were putting Pakistan on the path of sustained development. It is clear that the constitutional farce played on the people and Mohtarma Fatima Jinnah was of no concern to the technocrats hard at work in their silo. Sartaj Sahib writes that when it all blew up in their faces, as the muffled voices became louder all across the two wings of the country, they were rather taken aback. Little had they realized that the country was heading towards dismemberment under their watch.

One could continue through the inanities of the Zia and the Musharraf years and beyond. The monotony of misplaced technocratic hope dashed by instability that inevitably undermines constitutional deformity is tiresome to narrate. The point is somehow never taken.

The scene is set yet again. The roughing up of journalists and other irritants that we saw during the term of the last government continues with deepening vengeance. From Matiullah and Toor to Gill and Swati and beyond there is impunity to visit savagery. Medical reports have dutifully indicated nothing much happened: a new weapon has been added to the tool kit available for muzzling voices and re-ordering the political landscape. One is told that time is needed to complete the landscaping. What is awaited now, by those who wait on such matters, is the court verdict without which the latest intended deviation cannot be operationalized.

The constitution envisages a representative government and a stable assembly elected within ninety days of the dissolution of the last assembly, whether provincial or federal. National interest is to be pleaded against this scheme of the constitution. One submits that the national interest lies in obeying the constitution and in the courts upholding their own dignity. One rests one’s case.

The writer is an advocate of the Supreme Court of Pakistan. He tweets @salmanAraja and can be reached at:

salmanr2002@hotmail.com