A failed heist

The people of Pakistan are recovering from the trauma of a Sunday midnight political heist, where their 'chosen representatives' attempted to strip them of their political and constitutional rights.

This shameful episode occurred just four days after the 76th death anniversary of Quaid-e-Azam. The freedoms and liberties of the people, guaranteed by the constitution, came under a malicious attack through a surreptitious, fraudulent, and unconstitutional amendment. This attack sought to strip the constitution of its meaning and purpose, especially by targeting the high courts and Supreme Court, depriving them of their jurisdiction and powers as the last line of defense for the people's rights.

However, these nefarious designs were thwarted by what many view as a miraculous intervention by Providence. The weakest link in Pakistan’s political chain resisted all pressures and temptations, successfully repelling this malicious assault executed in undue haste. Yet, the threat has not been fully averted, and the people must remain vigilant. Even those who claim ties to the constitution's creation were complicit, while others were all too ready to sacrifice their honour and integrity for momentary power.

The constitution of Pakistan was carefully debated over five weeks, from December 31, 1972, to April 8, 1973, during a tumultuous period following a civil war. These debates, spanning over 6000 printed pages, bear witness to the wisdom and will of its framers. Now, it was being 'amended' without following the proper constitutional process – lacking legitimacy, debate, and responsibility – and in violation of democratic and constitutional norms by those whose very presence in parliament is allegedly tainted by electoral fraud.

Self-proclaimed champions of democracy conspired to orchestrate this heist. The most sacred social contract, the constitution, was nearly violated and subverted by those who lined up like sheep to vote in the dead of night for these illegitimate amendments, in utter violation of their oaths.

While the constitution grants parliament the power to amend, this power is limited – both explicitly and implicitly. These limits are set by the people of Pakistan, in whose name the constitution was adopted, and whose authority to amend it is exercised. No parliament has the power to alter the basic features of the constitution. It cannot declare Pakistan a secular state, strip away fundamental rights, change its republican, democratic, federal, and parliamentary form of government, or undermine the independence of the judiciary, which forms the bedrock of the constitution.

Had the attempted amendments succeeded, they would have deprived the people of several basic rights, including the right to life and liberty, due process of law, freedom of speech and expression, equal protection under the law, and access to justice through an independent judiciary. In the name of national security, a specific class of persons would have been permanently removed from the jurisdiction of the high courts.

A constitution exists for the people, and if the people are not free, protected, happy, and prosperous, it loses its efficacy and legitimacy. The spirit of the constitution, as expressed in its preamble, gives life to its body. If the body is mutilated, the soul too is wounded.

Now to the much-touted idea of a constitutional court. This concept allegedly emerged from the Charter of Democracy (COD) of 2006, drafted at a time when the ordinary courts had largely capitulated. A series of judgments, beginning with Zafar Ali Shah's case (1999), had denied the people their political and civil rights, and rule of law. The COD, signed on May 14, 2006, was meant as a document of resistance, with lofty claims in its preamble. However, its signatories soon compromised for power, abandoning its principles.

Clauses 3 and 4 of the COD called for an overhaul of the judicial system by ending special terrorism and accountability courts and establishing a constitutional court. However, the COD had its contradictions. While it promised to restore the constitution to its original 1973 form, it retained several provisions added during martial law. The idea behind the constitutional court was that the existing courts had failed to protect democracy and rule of law, and to prevent military interventions, often granting legitimacy to constitutional abrogation and deviations.

The amendment to establish a Federal Constitutional Court at this moment is motivated by an apparent bad faith. Two main political parties and their allies are unwilling to accept an independent Supreme Court, particularly its judgment on reserved seats. By allowing horse trading and fiddling with the political and judicial system, through the proposed amendments for their political spoils, this attempt would have led the country to a disaster and undermined rule of law and democracy. Bad advice blended with incompetence and political sycophancy will only further edge the country to the brink of wells of fire.

Another rather painful motive behind this unconscionable move was to pack the proposed Federal Constitutional Court with lackeys who were willing to protect and perpetuate this heist on people’s rights to govern themselves through their ballot. The ploy of alleging huge pendency and other reasons being touted were utterly false, a smokescreen, and an insult to a common man’s intelligence. No more tricks are left in the catchall of political jugglers.

National security, the rise in terrorism, political division, a perpetual economic crisis, unprecedented price hikes, and ongoing uncertainty are crippling businesses and halting investments. These urgent threats demand serious, sincere efforts and innovative solutions without compromising rule of law or basic rights. National institutions deserve unwavering support and respect, but this must be earned by adhering to the constitution.

In the past, people supported efforts to combat terrorism, even agreeing to constitutionalize military courts for limited purposes. However, this was done with genuine political consensus and targeted only enemy combatants, not political dissenters. The key lesson from history and global experience is that political problems require political solutions within the constitutional framework, through open debate and honest dialogue.

Wars and external threats are won only with the united support of the nation, transcending political divides. A healing touch is needed in these difficult times.

The writer is an advocate of the Supreme Court and former additional attorney general for Pakistan. He can be reached at: mwaqarrana@yahoo.com