Pakistan: Judicial Martial Law?

Pakistan's Chief Justice Saqib Nisar promises that monarchy-based democracy will not be allowed, and hopefully, he and his fellow justices will insist on the correct interpretation and implementation of the laws of the land.

Posted on 03/31/18
By Ikram Sehgal | Via ViewsWeek
Chief Justice of Pakistan Justice Saqib Nisar has been proactive holding government accountable on many issues related to governance.

Our Republic Day is an appropriate occasion to reflect on the meaning of the day, most thought-provoking comments were made by the Chief Justice (CJ) of Pakistan’s Supreme Court (SC) in Lahore on March 23. Referring to remarks made by the Awami Muslim League Chief Sheikh Rasheed urging a 90-day ‘judicial martial law’ in the run-up to the upcoming general elections, CJ Mian Saqib Nisar ruled out any such possibility. Terming the supremacy of law, the independence of the judiciary and the impartial provision of justice “most important aspects for a country to progress”, he stressed that the country needed being run in accordance with its supreme law – the Constitution.


Unfortunately, the imposition of martial law by the military and approval thereof by the judiciary represents a certain sorry tradition in Pakistan. Instead of carrying out their task to uphold, interpret and apply the Constitution our superior judiciary effectively abrogated the authority vested in the SC by the Constitution by saying “martial Law was right”. They even gave powers to military dictator Gen Musharraf to “amend” the Constitution as he saw fit! Neither Pakistani society nor its civilian, military and judicial institutions have understood the essence of the state, a democracy must be run based on the rule of law and the pre-condition is that all Pakistanis understand and accept that the Constitution is the supreme law of the land, to be respected and implemented first and foremost.


The German philosopher Hegel explained two hundred years ago that freedom means to understand and accept necessity – the necessity to make laws and keep to the rule of law in order to build a peaceful progressive society. In our case, the necessity is to obey the law and to defend it out of our free will because we understand that without law and order we will not be able to progress. All our smaller private, political and even economic endeavors have to be subjugated to the rule of law, the judiciary is there to make sure that this happens.  The problem arises in strictly adhering to the wording of the law instead of abiding by the spirit of it.


The movers of the Lahore Resolution on March 23, 1940, asked not only for freedom from the British but for the freedom for Muslims to render their lives according to the tenets of Islam based on the British political majority system. Freedom from British rule and India came true on 14 August 1947, Pakistan is struggling today to understand and accept the second part – the supremacy of the Constitution in a “British-style” democracy. This freedom acknowledges the necessity of rule of law – not accepted by a large part of our society and political leaders. Our feudal background makes us think that a selected few are so special, so important and so wonderful that laws apply only to the others but not to them.Motivated interest rather than the national compulsion goes with the feudal mentality of our elite.   Imagine the incongruity of having someone who renounced his Pakistani citizenship as far back as 2008 being named on the elite panel announced by the Chief Justice to recover illegal wealth?  For years this scoundrel faked his “Pakistani” presence to get access to Boards of sensitive public sector entities, those “elite club” friends are using the SC to rehabilitate him.


The former PM,  family and close aides think that they are above the law. Getting 15 million votes out of a population of 190 million (at that time), “industrial feudal” Mian Nawaz Sharif fuels the perception that the verdict of the SC disqualifying him is false by holding massive public rallies.  Does getting slightly more than 20% votes cast of the actual 2013 electoral turnout represent the “mandate” of the entire population of Pakistan?  This exposes how ridiculous and bankrupt our British-adopted “first past the post” system is. Not once in the last 9 months has Nawaz Sharif given credible counter-arguments about his enormous wealth and assets abroad, “Panama Gate” represents only a tip of the “illegal” iceberg. Nawaz Sharif’s public stance and rhetoric negate the necessity to accept the supremacy of the law and the Constitution and the role of the judiciary to uphold it by telling lies blatantly and constantly. Those supporting him demonstrate graphically that they also do not accept the necessity of the rule of law. Our dominant feudal mentality does not need a judiciary at all, we might as well have a King like in the Middle Ages who is the maker, sole interpreter, and applier of the law all-in-one.


To quote my article of Dec 30, 2016 “Wishes for 2017”, “The caliber and integrity of the incoming Chief Justice of Supreme Court, Mian Saqib Nisar, does not merit the insidious slander campaign on the social media. His predecessor said a lot of good things in public forums but did little about it on the Court. History does not forgive those who favor expediency and personalities over principles. One of our outstanding jurists, Justice Munir, is remembered in posterity only for authoring the infamous “Doctrine of Necessity”. Justice is represented by a blindfolded Greek god favoring neither friend nor foe, imparting justice equally for the rich and the poor. The poor can hardly afford rich lawyers who play with words to circumvent the spirit of the law. Given his track record, one knows that the incoming Chief Justice will not be selective in being deaf, dumb and blind. Mian Saqib Nisar is literally Pakistan’s last hope, he must remain true to his integrity and character, and to his calling”, unquote. With the experience of dealing with thousands of manpower, it is satisfying to get one’s assessment of a person right.


CJ Saqib Nisar promises that monarchy-based democracy will not be allowed to happen, hopefully, he and his fellow justices will insist on the correct interpretation and implementation of the laws of the land. The current COAS (and his two predecessors) have ruled out any military rule. Without this ‘Sword of Damocles’ hanging over our heads we could go straight ahead to improve our political set-up. Whether the forthcoming elections are conducted without rigging will be the “acid test” for democracy.  Can (and will) the ECP bar those who do not qualify paras 62 and 63 of the Constitution?


The CJ has been reinforcing his words with deeds, this has given strength and determination to Chairman NAB Justice Javaid Iqbal for NAB not to remain a silent spectator to nepotism and corruption but to prosecute whoever it may be.


The writer is a defense and security analyst.

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