Institutional efforts to Uphold Constitution
Khalid Khokhar


ALTHOUGH legal wizard and internationally recognized top five intellectual of the world, Senator Aitzaz Ahsan asserted that the Chief Justice of Pakistan (CJP) and the Chief of Army Staff (COAS) are not allowed to give political statements, yet both the heads of national institutions are working to uphold the constitution that ensures to resolve plethora of the challenges faced by the country. A cross-section of media cartel following a well-documented agenda, is defaming the military by spreading rumors of a clash of state institutions - interweaving two speeches as a chain reaction of one on another. Such like attempt having anti-state tinge is detrimental to the smooth functioning of state institutions - pitching Pakistan Army against the judiciary. Needless to say, talking against military and judiciary with maliciousness will not strengthen but weaken the national institutions. Introspectively speaking, the COAS and CJP gave individual statements on two separate venues in different timeframe on November 5, 2012. Gen Kayani was speaking to a group of officers at GHQ Rawalpindi, while on the same day CJP Iftikhar Mohammad Chaudhry addressed a delegation of the National Management Course, National School of Public Policy and National Management College, Lahore at the Supreme Court building. While both the declarations were not a reaction to one another, commonality of the subject-matter marked suspicion in the political circles only to be blown out of proportion by media hawks. It was a mere coincidence that the common theme of speeches appeared together in the media.

The recent declaration of COAS looks as if to be responding to the on-going criticism of nine retired Generals impeached with interfering in the political process, i.e. Asghar Khan Case - in which a former COAS and former head of the ISI have been accused, opening of corruption cases in the NLC, Pakistan Railways and Fauji Fertilizers. A lot of stuff has been churned out against the defence forces depending on the level of grudge one has with it. In addition to the case of ‘enforced disappearances’ and law and order cases in Balochistan, the judiciary has been criticising the policies and actions of the military and its intelligence arms. This has undermined public’s confidence in the military, threatening to create rifts amongst the high-level hierarchy command with second-tier of command of the military. The Armed Forces successfully maintained the writ of the Government in different parts of the country sacrificing precious lives of more than 3,000 officers and Jawans to restore normalcy and maintain peace. The people of Pakistan expresses confidence in the role of the defence forces in the past against external aggression, they will live up to their traditions whenever called upon to defend their motherland. As Pakistan Armed Forces, being defenders of national frontiers draws inspiration and strength from the backing of general public, therefore, injuring the respect of such an institution publicly is totally uncalled for. We all agree that strengthening the institutions, ensuring the rule of law and working within the well defined bounds of the constitution is the right way forward. Weakening of the institutions and trying to assume more than one’s due role will take the country down the ladder.
In a democratic set-up, there are three main pillars of the State; Parliament, Judiciary and Executive. Judicial role is as important because it decides disputes, protects rights, punishes for the wrong doings in accordance with constitution and laws passed by the Parliament. The Courts in many Western and Asian countries enjoy unchallengeable supremacy over their respective legislative houses through their power of judicial review. the US Supreme Court continues to constitutionally determine the validity and application of the laws passed by its country’s legislators since 1803. In the Marbury versus Madison case, the legendary Chief Justice John Marshall had struck down the unconstitutional acts of the US legislators, showing it to the world that the judges enjoyed exclusive judicial review powers to determine which laws the American Congress actually intended to apply to any given case. Drawing inspiration from the landmark US Judge’s decision, the legal accountability of the government by the courts is mandated in the Constitution. The beauty of federal democracies is the independent working of all the governmental institutions, restricted by the principle of checks and balances which means that no institution enjoys supremacy over the other. It is not the sole responsibility of the Judiciary to uphold the constitution, rather it is the onus of all the state institutions cooperating each other in the fulfillment of the diktats of the constitution. In achieving this grand objective, the institutions must make consistent efforts by remaining in their allotted sphere. The CJP Iftikhar Muhammad Chaudhry has rightly stated that military is subordinate to civilian government, but the CJP’s claim that every other institution is subservient to Supreme Court having final authority in deciding the matters, bagged severe criticism from remaining institutions in particular and from public in general.
The leaders of major political parties demonstrated maturity by giving balanced policy statement in this so-called media trial. Recognizing the respective roles of the armed forces and the judiciary, the politicians have appreciated both the institutions for the job they are doing in their respective spheres. In a press release, Pakistan Muslim League-Nawaz (PML-N) President Nawaz Sharif stated that for strengthening the institutions, it was imperative that there should be complete coordination among all the pillars of the state; everyone should ensure the supremacy of law and the Constitution. Upholding the law and the Constitution is the focal in the speeches of the Army chief General Kayani and Chief Justice Iftikhar Muhammad Chaudhry. Awami National Party (ANP) chief Asfandyar Wali opined that an independent judiciary was mandatory for the supremacy of the Constitution and the parliament. “My party values army’s sacrifices which it rendered during the war against terrorism. It believes in supremacy of law and independent judiciary. PML-Q President Chaudhry Shujaat Hussain felt that some elements were trying to destabilize the country by airing a conflict of institutions.
The importance of parliament cannot be over-emphasized. The parliament plays a pivotal role in setting direction of State by enacting laws as well as making constitutional amendments in accordance with the needs of time. The parliament which helped resolved the issues of the restoration of judiciary in March 2009, Raymond Davis case, NATO raid on Salala checkpost in which 24 Pakistani soldiers were killed, the suspension and afterward restoration of NATO supplies, etc, should also come to the rescue of the on-going controversy created by statements of the chiefs of Army and judiciary. A parliamentary debate can keep at bay the clash between institutions and help settle the imbalance in civil-military relations. The people must understand that Parliament and judiciary are not two conflicting institutions that could not possibly work in a democratic dispensation. Unfortunately, the cultural norms of our society suggest that the MNA and MPA are supposed to be answerable to no one except their own political leaders - political accountability transcends credible legal accountability. This makes the elected representative to become maverick in approach. The constitutional and legal issues would be settled quickly if this cultural mindset is taken out of it and the political leaders accept the sole responsibility of the courts in interpreting the Constitution. Now, the changing of mindset would require important faculties of self-control and self-regulation within one’s super ego through a process of socialization. While the list of such precedents of flouting the judiciary is unending, but it remains to be seen as to how long do the politicians incorporate these qualities in them.