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Independence Day Resolve

August 14, 2022 marks 75th Independence Day of Islamic Republic of Pakistan

The resolution of March 23, 1940, known as Lahore Resolution, paved the way for a separate homeland for the Muslims of India on August 14, 1947 after a long-drawn struggle against colonial rule. However, after 75 years of existence, the state of Pakistan is still caught in various conflicts—perpetual political instability and growing discord among political parties, polarisation of nation even on fundamental issues of national security, economic difficulties and disparities, disharmony between the centre and provinces, terrorism, militancy, cases of scandals and corruption, endless debates about the real motives for creation of Pakistan, witch-hunting in the name of ideology and role of men in khaki in politics, just to mention a few.

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Since its inception, Pakistan faced a daunting challenge of establishing true democratic polity based on constitutional supremacy, rule of law and equity. Long military regimes till 2008 and in between experiments in “controlled democracy” denied the people of Pakistan their sovereign right of self-governance, for which many lost their lives and honour, to secure independence from the British raj. These dictatorial rules, both military or civilian, muzzled all state organs—especially judiciary that became an approving arm for many unconstitutional rules till the advent of so-called decade of democratic rule in 2008. However, the defiance demonstrated on March 9, 2007 was a starting point that culminated in ending military rule on March 16, 2009.

For judiciary, November 3, 2007 was the beginning of a new era. A dictator imposed judiciary-specific martial law—this time the victims were not politicians but the judges. For the first time, it was an issue of survival for those who always sided with men in uniform against politicians. Restoring status quo ante existing on November 2, 2007—reversing unlawful acts of now seriously ill, General Pervez Musharraf—was done in the wake of insurmountable public pressure.

The post-March 16, 2009 scenario—judiciary versus government—was created by forces that wanted to undermine democracy but they failed. The effectiveness of people’s power that reigned from March 9, 2007 to July 20, 2007, from November 3, 2007 to March 16, 2009—culminated in the second restitution of the Chief Justice of Pakistan on March 22, 2009—paved the way for continuation of democracy—many believe as ‘controlled’ and muzzled.

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In the initial days after restitution of judiciary, there was great mood of jubilation in all circles, but everything changed when the Supreme Court not only declared the National Reconciliation Ordinance (NRO) ultra vires and void ab initio in Dr Mobashir Hassan & Others v Federation of Pakistan and Others, PLD 2010 SC 1 but also asked the government to revive matters pertaining to funds allegedly stashed in Switzerland. The refusal to do so on valid grounds of Article 248(2) of the Constitution of Islamic Republic of Pakistan [“the Constitution”] resulted in the indictment and punishment of then Premier Yousaf Raza Gilani for contempt. Many questioned validity of the verdicts against Yousaf Raza Gilani and Mian Muhammad Nawaz Sharif—three times elected Prime Minister of Pakistan.

From 2009 to 2018, the Supreme Court took up a lot of cases, using its suo muto powers, causing hysteria in many circles attracting severe criticism from many quarters, especially those in power, that judiciary was “transgressing its constitutionally-defined limits”. In Panama case, this was the main thrust of all the three lawyers who represented the First Family. Unfortunately, political polarization diluted valiant common struggle waged by all segments of society, most notably by lawyers, media, social and political activists, for restoration of an independent judiciary.

The citizens of Pakistan since independence have been deprived of their fundamental rights—the state organs failed to ensure the same. They never bothered about implementing rule of law and good governance that alone could have put an end to judicial activism.

The apex court in its verdict in Asghar Khan’s case [Human rights case No. 19 of 1996, reported as Air Marshal (Retd.) Muhammad Asghar Khan vs General (Retd.) Mirza Aslam Baig, Former Chief of Army Staff (PLD 2013 SC 1)] established a departure from its legacy. But this verdict, like many other decisions, was openly defied by those in power—though they keep on championing the cause of democracy! It was taken note of by the Supreme Court of Pakistan in Suo Moto case 7 of 2017 as under:

“Pursuant to the judgment in Air Marshal Asghar Khan’s case the involvement of ISI and of the members of the Armed Forces in politics, media and other “unlawful activities” should have stopped. Instead when TLP’s dharna participants received cash handouts from men in uniform the perception of their involvement gained traction. The Director General of the Inter-Services Public Relations (“ISPR”) has also taken to commenting on political matters: “history will prove the 2018 general elections were transparent”.

Our history is marred by anti-people and autocratic rules—both military and civilian. Asghar Khan’s case revealed some sordid events—how the mighty tried to ignore and distort people’s mandate. Like all other institutions, judiciary in the post-independence period, suffered due to weak democratic traditions, fight between economic vested interests, rivalry of influential politicians and bitter power struggle between landowner cliques and civil-military bureaucracy.

Tragically, when state corporations like Railways, PIA and Pakistan Steel were—and still are—wrought with corruption and bankruptcy, we are facing the same situation on political front as was prevailing when Asghar Khan’s case was filed. The said case identified the faces responsible for undermining the entire political system. Supreme Court played its role but then politicians and institutions failed to bring them to justice!

It was admitted that huge money was released by a bank for political purposes. None bothered to establish till today how much was given to politicians and how much was embezzled for self-aggrandizement. How many people minted money in the name of ‘national interest’ can be anyone’s wild guess? Later, the Federal Investigation Agency (FIA) reported “nothing was proved”! This case exposes the very fragility of system where rule of law has been and still flouted with impunity. The review petition of the main accused and order to FIA to continue the investigation in April 2019 are no more of interest to anyone—not even to so-called vibrant media.

Unfortunately during the Decade of Democracy [2008-18] and even under the rule of coalition government of Pakistan Tehreek-e-Insaf (PTI) from August 18, 2018 to April 10, 2022 no remedial measures were taken vis-à-vis factors mentioned in Air Marshal (Retd.) Muhammad Asghar Khan vs General (Retd.) Mirza Aslam Baig, Former Chief of Army Staff (PLD 2013 SC 1). The present alliance government of Pakistan Democratic Movement (PDM) is maintaining complete silence over this matter.   

As “press and nation rise and fall together”, the same applies to 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 Supreme Court of Pakistan on many occasions resisted external pressures, including street power. It delivered many decisions within the boundaries of law. It is well-established that once higher judiciary becomes independent and fair, the mighty sections are fearful of flouting laws, and adventurists refrain from thinking before taking supra-constitutional steps to disrupt the democratic process.

While celebrating 75 tumultuous years of our nationhood, we are still perplexed as to how a state purportedly created in the name of ‘Islam’ is juxtaposed with the term ‘Republic’. Pakistanis wonder how a Parliament, where majority is not that of theologians, enacts Western-inspired laws and yet claims that Shariah is supreme. In the Western world, ‘republic’ is considered a State that precludes both monarchy and clergy. In our context, the predominant view (though totally misconceived) is that divorced from religion, politics is “changezee” (chaos, anarchy and disorder).

 جلالِ بادشاہی ہو کہ جمہوری تماشا ہو
جدا ہو دیں سیاست سے تو رہ جاتی ہے چنگیزی

What Iqbal emphasised in the couplet, Jalali badshahi ho ya jamhori tamasha ho
Juda ho deen siyasat se, to reh jati hai changezee
, is that ethics (here deen is misconstrued as organised religion and not way of living) should be part and parcel of governance, but interpretation of clergy is that politics should only be in the name of religion. They conveniently ignore the first stanza of the couplet. If both stanzas are read together, the idea that emerges clearly is that whether it is monarchy or democracy, governance sans ethics is “changezee”. Shariah has become a contentious issue since the adoption of Objective Resolution of 1949. In a fragmented society marred by sectarian hatred (not merely genuine differences over interpretation of Islamic laws) this has becomes a permanent source of conflicts with claims and counter claims on how to run the State
.

During 75 years of existence, Pakistan has witnessed many upheavals—a journey from crisis to crisis has at its core the struggle for establishing a true democratic polity and a welfare state. The way united opposition was agitating by filing a no-confidence move (voting was expected on March 28, 2022 but delayed by undesirable and unlawful tactics by the PTI government till April 10, 2022) alleged pre and post poll rigging in the aftermath of 2018 elections testified that inclination to evolve a national consensus for people’s rule was and is still a distant dream after seventy-five years of independence. Liberation from colonial masters in 1947 to continuous subjugation in the hands of powerful classes—militro-judicial-civil complex, businessmen-turned-politicians and absentee land owners—remains the real and painful dilemma for the masses.

The failures on political, economic and social fronts, during the decade of democracy (2008-2018) and thereafter under the PTI rule of three years and eight months and now under the PDM government since April 10, 2022, once again confirms lack of determination on the part of politicians to act collectively and resolutely to defeat de facto power—thus the apprehensions of strengthening of ‘garrison state’, as elaborated intensely by political scientist, Dr. Ishtiaq Ahmed, in his book, Pakistan: The Garrison State: Origins, Evolution, Consequences 1947-2011, are proving true.

The significant achievements in many areas during the last 75 years have been dampened by the non-existence of national cohesion and people’s rule where masses can get real benefits of growth and resources. Despite all odds—indifference and apathy of political leadership, learned helplessness of masses and long military rules—the nation has showed resilience and unshakable faith in the electoral process whenever they got a chance. They did it on July 25, 2018 as well on July 17, 2022 (on many other occasions also) by giving unequivocal verdict against the undemocratic forces.

It is now the collective responsibility of all democratic forces to galvanise and mobilise masses for consolidating democracy and countering forces bent upon “controlling” elected institutions. Instead of fighting over petty things, the legislators should send a clear message to judiciary to interpret laws and refrain from indulging in real politik. Enforcing the will of people is essentially a political question that cannot be resolved in the courts. Since our leadership failed on this account in the past, the entire society had to face devastating effects of unrepresentative rules—approved by higher courts.

It is high time that all stakeholders should initiate a meaningful dialogue for converting this garrison state into a modern, democratic country that is the only road to salvation. The tragedy of garrison state is that its de facto rulers and cronies working for them give a damn to the aspirations of people and have done nothing worthwhile for the less-privileged—an attitude leading to a suicidal path.

On August 14, 2022 [75th Independence Day], we as a nation must resolve for supremacy of constitution and strict adherence to rule of law. If no action is taken against violators of the laws of land, especially the supreme law, then what is the meaning of supremacy of the Constitution?

 It is time that we revive the resolve of Pakistan’s founding fathers for establishing a true democratic rule, by punishing violators of Article 6 of the Constitution and all persons, not politicians alone, who have dirtied their hands in any kind of financial scam. This process of accountability should be strictly as per law fulfilling all requirements of Article 10A of the Constitution.

It is an undeniable fact that during the several decades, the elites of Pakistan—militro-judicial-civil complex, businessmen-turned politicians and absentee landowners—pushed the country into great turmoil. Despite becoming a nuclear state, we are ensnared in a deadly debt trap, while the overwhelming majority of population lacks even basic amenities of life. Wealth and power is concentrated in a few hands, income disparities are widening and the main burden of taxes has been shifted on the less-privileged segments of society. The elitist economy favours the rich and mighty—with every passing day the rich-poor divide is assuming alarming dimensions.

Our oppressive economic system protects and promotes interests of the exploitative classes in utter violation of Article 3 of the Constitution”. Since its inception, Pakistan nurtured an exploitative system, which has been gaining strength with each day. The various forms of exploitation and repression are so deeply rooted in the system that they are even taking away the guaranteed “right to life” from the poor, what to talk of fulfilling the promise mentioned in Article 3: “The State shall ensure the elimination of all forms of exploitation and the gradual fulfilment of the fundamental principle, from each according to his ability, to each according to his work“.

The framers of the Constitution thoughtfully inserted the principle: “from each according to his ability to each according to his work“. It was once considered the lower stage of a just and equitable society requiring: “from each according to his ability, to each according to his needs”. Karl Marx had specific conditions in mind for such a creed to work in a society where technology and social organisation would substantially eliminate the need for physical labour in the production of goods, where “labour becomes not only a means of life but life’s prime want”. Marx explained that in such a society, each person would be motivated to work for the good of society, despite the absence of a social mechanism, compelling them to work, because work would become a pleasurable and creative activity. Marx intended the initial part of his slogan, “from each according to his ability” to suggest not merely that each person should work as hard as he/she can, but that each person should best develop his/her particular talents to contribute towards a humane society.

After reading Article 3, many desire that the Supreme Court, like many other cases of public importance under Article 184(3) of the Constitution, should take suo muto action not only for the enforcement of fundamental rights but also for the fulfilment of the principle laid down in Article 3 of the Constitution. They forget that the prevalent system protects the interests of the privileged classes and the judiciary is no exception. The laws that our judiciary interprets and protects with zeal, in fact, ensure “sanctity of private property” and “exploitation of the have-nots”. The judiciary is not a revolutionary organ—it is a product of the existing socio-economic system.

It is naive to expect from judiciary any avant-garde. For getting socio-economic justice, the people will have to wage relentless struggle themselves and through vote exert pressure on elected representatives to abide by the Constitution and fulfil their inviolable fundamental rights as they are bound to do so and not as a matter of favour to the masses. Unfortunately as a nation, we have collectively failed to abide by the supreme law of the land and rule of law and every year celebrate the Independence Day as a ritual.

Pakistan’s ranking on the Human Development Index (HDI) 2020 stood at 154 out of the total 189 countries—lower than all the regional countries of South Asia. What a tragedy that nearly 25 million children out of school in Pakistan in denial of fundamental right under Article 25A of the Constitution which says: “The State shall provide free and compulsory education to all children of the age of five to sixteen years in such manner as may be determined by law”. According to a report, “the national poverty ratio, which was 31.3% in June 2018, sharply jumped to over 40% by June 30, 2020—it has deteriorated further since then.

 Theoretically, all admit that the Constitution is supreme and each organ of the state has to perform its duties and functions in accordance with the constitutional scheme. However, practically, elected and unelected controlling and running various state institutions defy the rule of law with impunity and even the Constitution without any fear of accountability. Resultantly, the majority is disillusioned that even after 75 years of liberation from British rule, we lack the political will to implement Article 3 and other fundamental rights guaranteed in the Constitution [Article 8 to 28].  

Imran Khan, former Prime Minister of Pakistan and head of Tehreek-e-Insaf (PTI), in victory speech of July 26, 2018, vowed to make Pakistan a welfare state. He did not mention implementation of Article 3 of the Constitution specifically as a starting point or abolition of the existing exploitative system, which is highly unjust and oppressive. Though he promised to make Pakistan a just society as the name of his party means movement for “justice” but miserably failed to do so.

In Khyber Pakhtunkhwa, PTI from 2008 till today showed no will to end the exploitative system, for example, taxing the privileged classes. Our oppressive tax system, both at federal and provincial levels, blatantly violates Article 3 of the Constitution as the vast majority pays exorbitant indirect taxes even on essential commodities of everyday use while the mighty sections of society—the big absentee landowners, industrialists, judges, generals and bureaucrats get exemptions and waivers.

Even the unscrupulous businessmen after frequent amnesties and money whitening schemes have been amassing enormous wealth, a process that is still going on. The high-ranking officials of the State are enjoying unprecedented perquisites, benefits and privileges—tax-free and funded by money collected from the masses under various tax codes.

Income inequalities are widening—resources are being transferred from the poor to the rich through manipulative taxes. The exploitative classes, even mafias, fund politicians. The anti-people alliance of the greedy businessmen, tax officials and politicians deprive the state of revenue worth billions. The mighty sections of society are engaged in tax evasion and money laundering. The PTI, winning elections on anti-corruption campaign, failed to dismantle rent-seeking, anti-people, elitist structures, punish the looters of national wealth. The preset government of PDM has also yet not chalked out a plan to restructure the entire economic system providing equitable distribution of wealth/resources as envisaged in Article 3 of the Constitution. On the contrary, it has withdrawn the tax imposed on retailers through electricity bills to broaden the tax base.

The burgeoning fiscal deficit and monstrous debt burden are not isolated phenomena. These are results of failure in: undertaking fundamental structural reforms, enforcing fiscal discipline, cracking down on parallel economy, increasing tax collection, abolishing perks and benefits of the ruling elites, eliminating wasteful expenses, dismantling rent-seeking structures, ensuring rule of law, and stopping reckless borrowing and ruthless spending.

Resource mobilisation should be the top priority of the present government and any future government to build infrastructure, facilitate growth of small and medium sized firms in the industrial sector and efficient/productive farming for an employment intensive and equitable economic growth process. To end income/wealth gap, large corporations with equity stakes for the poor be established through public-private partnerships. This would set the stage for a structural change that can help achieve economic growth for the people and by the people which is presently confined to the elites only.

The most disturbing and painful reality of Pakistan is unabated/shameless indulgence of ruling elites in wasteful expenditures. Look at their lifestyle when the majority of population is undernourished and facing extreme economic difficulties in the wake of economic meltdown. For becoming economically self-reliant nation, the rulers will have to take the first step by starting to live at a modest level. True independence requires self-reliance for which fundamental reforms are inevitable.

There is no dearth of ideas and good people for such reforms—complete roadmap is already available through many research-based, workable studies along with implementation strategy and plans. We only lack political will to abolish elitist structures that are the main impediments for ensuring equal opportunities for all citizens and extending to common people benefits of public spending and economic growth as well as fulfilment of fundamental rights guaranteed by the Constitution.

_______________________________________________________________

Dr. Ikramul Haq, Advocate Supreme Court, specialises in constitutional, corporate, media, ML/CFT related laws, IT, intellectual property, arbitration and international tax laws. He is country editor and correspondent of International Bureau of Fiscal Documentation (IBFD) and member of International Fiscal Association (IFA). He is Visiting Faculty at Lahore University of Management Sciences (LUMS) and member Advisory Board and Visiting Senior Fellow of Pakistan Institute of Development Economics (PIDE).

Abdul Rauf Shakoori, Advocate High Court, is a subject-matter expert on AML-CFT, Compliance, Cyber Crime and Risk Management. He has been providing AML-CFT advisory and training services to financial institutions (banks, DNFBPs, Investment companies, Money Service Businesses, insurance companies and securities), government institutions including law enforcement agencies located in North America (USA & CANADA), Middle East and Pakistan. His areas of expertise include legal, strategic planning, cross border transactions including but not limited to joint ventures (JVs), mergers & acquisitions (M&A), takeovers, privatizations, overseas expansions, USA Patriot Act, Banking Secrecy Act, Office of Foreign Assets Control (OFAC).

The recent publication, coauthored by these writes with Huzaima Bukhari, is:

Pakistan Tackling FATF: Challenges & Solutions

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