By Yasser Latif Hamdani
… And thank god that they have not dabbled in that horrible theory of the basic structure which would have meant closing the door on any future prospect of democratic reform in Pakistan (in my personal view).
I think this is an important middle ground which has atleast restored some of the faith I had lost in our judiciary to do the right thing.
Now it is upto the democratic government to meet the judiciary half way. Continue reading
Pakistan’s devastating floods have opened up a Pandora’s Box of governance dysfunctions and historical distortions that have plagued the polity since independence. It remains to be seen what will be the outcome of the greatest calamity in our recent history. Various estimates show that the floods have affected 18-20 million people. The death toll has crossed the figure of 2000 while 2 million houses have been damaged or destroyed. Floodwaters are receding in many areas, and though there are concerns about standing water that remains in Punjab and other areas, the worst of the current flooding is taking place in Sindh.
The disaster is still not over but the fissures within Pakistan have started to erupt and once again proving how vulnerable the state is and how fractured the Pakistani society has become. Five key crises have emerged, some old and some new. However, they point to the fact that our continuous refusal to address structural problems remains a key challenge.
Martial state syndrome: Pakistan’s history is an uninterrupted tale of direct and indirect military rule and centralisation. Each time there is a crisis there is a need to resort to the de facto, real governance paradigm: the military rule. Therefore, Altaf Hussain of the Muttahida Qaumi Movement (MQM) and Imran Khan of the Pakistan Tehreek-e-Insaaf (PTI) are not saying anything new. The perennial search for a Messiah, rooted in the religious ideology that the state and education system have cultivated, is back in full force. This time the media and other discordant voices are calling for another phase of direct military rule. Continue reading
Faisal Naseem Chaudhry
The 18th Amendment case is likely to conclude soon and it is quite probable (courtesy of remarks of the Honourable Judges) that the SC may strike down a constitutional amendment finding it contrary to Independence of Judiciary; in other words finding it contrary to the ‘Basic Structure of the Constitution’.
Pasted below are some excerpts from a Five Member Bench Judgement of the SC delivered on 13 April 2005. The Judgement is known as Pakistan Lawyers Forum vs Federation of Pakistan and through this cluster of different petitions, the constitutionality of 17th Amendment was challenged before the SC. One of the grounds was that the 17th Amendment was violative of the Basic Structure of the constitution. As stated earlier, it was a Five Member bench and the then two members are still members of the Full Bench of today i.e. Chief Justice Iftikhar Chaudhry and Justice Javed Iqbal.
President Musharraf’s Uniform / Dual Office quite analogous to President Zardari’s Dual Office was also challenged in the same petition, and dismissed accordingly, but since that is not the subject today, so that part of SC’s wisdom as to how it handled that question in 2005 is ignored at this point of time to be discussed in future.
The five member bench in 2005 dismissed the petition and upheld the 17th Amendment. The court held that the Indian Doctrine of Basic Structure of the Constitution has never been accepted in Pakistan’s judicial history; and that the Court can strike down a Constitutional Provision only if it is not passed in accordance with the procedures provided by the Constitution itself. Once an amendment is passed, it is left to the wisdom of the Parliament which passed it to change it in future according to the aspirations of the people of Pakistan. Continue reading
If the parliament and judiciary want to continue exercising their newfound powers, they have no option but to act strictly within the framework of the Pakistani Constitution
Pakistan is a surreal country. Only here we have long, protracted struggles for democracy and only here we are almost always ready to scuttle democracy. Perhaps Iskander Mirza was not all too wrong while making the assessment that democracy does not suit the genius of our people. An added qualification is that it does not suit the genius of the elites, in particular the unelected institutions of the state.
There is now a clear and present danger that the judicial review of the 18th Amendment will lead to a potential clash of the key organs of the state: the legislature and the judiciary. Pundits have also predicted that if such a situation arises, then a logjam will benefit the third force — Pakistan’s well organized formal institution, which is readily available to undertake crisis management. Perhaps such fears are slightly exaggerated and misplaced. But the reality is that Pakistani history teaches us some interesting though unsavoury lessons.
Curse of history
The Constitution of 1956 was drafted, almost after a decade of the new country’s formation, as the elites were not interested in changing the colonial structure of the state and its institutions. After much negotiation and a bit of arm-twisting, parity between the Eastern and the Western wings was achieved to finalise the basic law. However, the 1956 Constitution could not be enforced let alone implemented, as new elections were a risk for the national security establishment, which took charge of the country in 1958. The second moment arrived in 1970, when a political consensus arrived through election with divisive results, was once again scuttled by the unelected institutions and the West Pakistani elites. The results were tragic. 1977 was a third moment when the Bhutto administration and PNA movement agreed on a workable package for the future course of politics in the country. Even before this accord could reach the public domain, the Islamo-fascist General took the reins of power and thwarted the political consensus. There is a clear lesson here: a political consensus — wide-ranging, legitimate and inclusive — is a threat to the post-colonial state and the inherent contradictions of the Pakistani polity come into play the moment such compacts are arrived at. Continue reading
Filed under Constitution, human rights, Judiciary, Justice, Law, lawyers movement, Media, minorities, Pakistan, Politics, public policy, Rights, secular Pakistan, Society, state
Pakistan has crossed a major milestone last week by achieving a historic consensus on the 18th Amendment with 105 clauses, additions and deletions to the Constitution. The distortions inserted by the military rule have been done away with. Political elites this time, however, have gone a step further and improved the state of provincial autonomy. Perhaps this is where a civilian negotiation and democratic politics of compromise has been most effective. Who would have thought a few years ago that this was achievable? There were many skeptics who thought that the amendments might not be approved. However, the ‘corrupt’ and ‘incompetent’ politicians have proved everyone wrong.
Leaving aside the discourse of corruption, the NRO, and a vociferous media campaign against the President, the achievements in the last one-year by all political parties have been tremendous. The Awami National Party, after its initial truce with the militants, has stayed the course and resisted Talibanisation by giving full support to the army operations against the militants. The PPP and PML-N, despite their rhetoric and political point-scoring, have worked together on the national finance commission award (NFC) and now on the implementation of the Charter of Democracy (CoD) that has become the basis for the amendments to become a reality.
The nay-sayers of democracy and the political process forget one fundamental fact: a federal structure cannot work without a robust political process. A start has been made through the recent successes after a decade of ‘controlled democracy’. However, despite the march towards the democratic ideal, there are clear and present dangers that democracy is as fragile as ever. Continue reading
Raza Rumi (Published in Tehelka)
AFTER 37 YEARS OF POLITICAL UNCERTAINTY, PAKISTAN’S CONSTITUTION HAS BEEN RECAST ON ZARDARI’S WATCH. WILL IT HELP REKINDLE DEMOCRACY, WONDERS RAZA RUMI
BRANDED A ‘failed state’, Pakistan has become notorious in the global media. Political change is often a result of the notorious 111 Brigade (the Rawalpindi-based army contingent which leads any military coup) moving on the streets of Islamabad and capturing the derelict PTV (Pakistan Television) headquarters. News-worthiness is defined by the number of suicide blasts that take place in a single day within what has been termed as the “most dangerous country” in the world. Pity that such stereotypes have prevented a nuanced understanding of Pakistan, as well as the fact that it is a fast changing country with a strong yearning for the rule of law and constitutionalism. (Photo: AFP)
These days, Pakistanis, when they are on a break from the next suicide bomber, are rejoicing over a major political shift brought about by the April 8 approval by parliament of the 18th Amendment to fix the truncated Constitution. Thirty seven years ago, for the first time in its existence, Pakistan’s political elite was able to reach a consensus on the scheme and shape of the Constitution. An earlier version was the 1956 Constitution, which was abrogated even before its implementation by Field Marshal Ayub Khan in 1958. There were two other military “gifts” to the nation in 1962 and 1970, which were hardly democratic and barely representative of what citizens actually wanted. Continue reading
By Yasser Latif Hamdani
I know the self styled “progressives” hate it when I bring up Pakistan’s founding father but here I am forced to do so again:
Even now there are some States in existence where there are discriminations made and bars imposed against a particular class. Thank God, we are not starting in those days. We are starting in the days where there is no discrimination, no distinction between one community and another, no discrimination between one caste or creed and another. We are starting with this fundamental principle that we are all citizens and equal citizens of one State. – Mahomed Ali Jinnah, The Founder of Pakistan
Sadly – Modern Pakistan is one of those states Jinnah warned against! If we started with this fundamental principle, well we have been moving backwards for over 63 years now. Continue reading