Malice Elections Democracy Judiciary and Reforms

 All public power is a sacred trust, which is to be exercised fairly, justly, honestly and in accordance with law—Supreme Court in Workers’ Party Pakistan & Others v Federation of Pakistan & Others [PLD 2012 Supreme Court 681]

Election days come and go. But the struggle of the people to create a government which represents all of us and not just the one percent—a  government based on the principles of economic, social, racial and environmental justice—that struggle continues—Bernie Sanders

Pakistan is a strange country, where heads of institutions keep on expressing helplessness about non-performance of their organisations, and politicians ask voters to elect them even when they are apathetic towards their manifestos. On a daily basis, we hear a lot about the paralysis of all state institutions—legislative, administrative and judicial. People are told from rostrum to pulpit that the existing institutions have miserably failed. However, nobody suggests how to fix them. Politicians, bureaucrats and judges responsible for running the system openly confess to glaring inefficiencies.

After directions from the Supreme Court of Pakistan, those who matter in the land at last announced that people of Pakistan would be heading to the polls on February 8, 2024. However, political parties are least bothered with how to connect with voters, telling them how they are going to meet the challenges of providing clean drinking water, tackling the monstrous fiscal, trade and current account deficits, inadequate forex reserves, unemployment, dearth of educational and health facilities—just to mention a few. Political parties lack a culture of discourse and disagreement on the basis of arguments, reasons and logic. There is no inclination to secure consensus for a national agenda—no matter who wins.

Malice Towards None & All: All Pervasive Judicial Reforms (Part I) 

Since 1960s all governments, civil and military alike, have shown apathy towards the weaker sections of society. The income inequalities in Pakistan have increased sharply since 1980s. The single most devastating factor for increased income and wealth inequalities is the regressive tax system. Since 1992, the incident of tax on the poor has increased substantively (45%), while the rich owning close to 90 percent of wealth in the country pay less than 1% of total tax collected. No political party is concerned with chronic economic disparities, nor is there any debate from any quarter on the ever widening rich-poor divide.

We cannot set anything right unless we democratise our entire state apparatus. The existing system is inherently exploitative and anti-people—the ruling elites thrive on people’s hard-earned money using police force, taxation and judiciary to keep them under control for their vested interests.

Electronic media in Pakistan thrives off sheer sensationalism. The all-knowing anchors employ great energies to embellish corruption and malpractices, make fun of all, manufacture news and invent analyses, but they never invite representatives of political parties to present solutions and face informed questions from experts and the public at large. They hardly emphasise that our main failure is an absence of an efficient judicial system and the enforcement of the rule of law. Even the Chief Justice of Pakistan (CJP), Mr. Justice Qazi Faez Isa, has repeatedly mentioned in open court and elsewhere that we as a nation had failed to reform the system he heads.  

Malice Towards None & All: All Pervasive Judicial Reforms (Part II)

The media, hooked on “sensational news,” does not debate seriously how we can ensure justice for all, and guarantee rule of law, fairness and equity. The CJP is in the headlines on daily basis. Media highlights and create a hype about his observations regarding crumbling institutions, but not a single TV channel shows the plight of helpless litigants, waiting for hours and days outside the courts. Media expose the mega corruption cases of politicians, but never demands public disclosures of assets by generals, judges and high-ranking civil officials under Article 19A of the Constitution of Islamic Republic of Pakistan.

For many years, the country remained in the grip of “suo motu blitz” on the plea that “lack of governance attracts judicial assertiveness.” Fine, but then - nobody asks what the is remedy when the justice system fails to deliver. The judicial system obviously has to be fixed by legislators and judges, and not by people in the streets.

We cannot set anything right unless we democratise our entire state apparatus. The existing system is inherently exploitative and anti-people—the ruling elites thrive on people’s hard-earned money using police force, taxation and judiciary to keep them under control for their vested interests. Political and economic empowerment of the people, that is the essence of true democracy is the real challenge. For elites, this would be a deathblow. They are still preserving the VIP culture of the colonial era. Thus, through superficial actions, they want to divert the attention of masses from their real issues.

Malice Towards None & All: Institutional Tax Reforms

The militro-judicial-civil complex in Pakistan has been working for the rich and mighty but never for the helpless, hapless masses. They hoodwink the common people by claiming, “We are the custodians of the system” and “we will reform” it for you. They know that perpetuation of the existing system, in which they enjoy unprecedented tax-free perks and perquisites and free plots, alone can help them keep the masses subjugated.

For democracy, the sine qua non is accountability—of all, and not of political adversaries alone. Accountability must start from the judges who adjudge others. Judges must be above board—men of integrity, blameless, and free from all internal and external pressures. Since justice should not only be done but seen to have been done, the prime duty of a judge is to demonstrate this through his judgements and not by verbal exchanges in courts or statements on various occasions.

The politicians have never been inclined to ensure accountability of judges and generals. In 2017, all the main political parties, in fact, rejected the suggestion of Farhatullah Babar including his own Pakistan Peoples Party, to include in the ambit of National Accountability Commission Bill, 2017 the judges and generals. Later, leaders of these parties had to face the music for appeasing the militro-judicial-civil complex.

Malice Towards None & All: The Garrison State, After 76 Tumultuous Years

The new government, after the elections of February 8, 2024, it is widely believed, would be no different—no matter who wins, or as expected, there will be yet another hung parliament. The reason is simple - that collectively we have failed to establish a true democratic set-up that ensures implementation of rule of law and accountability of all, especially of state officials and public offices holders 

It is worth mentioning that Mr. Justice Syed Mansoor Ali Shah, an illustrious jurist and judge of Supreme Court, in his detailed order (minority view) on October 30, 2023 in the Constitutional Petition 21 of 2022, challenging the amendments in the National Accountability Ordinance, 1999, held as under:

“This case was heard on over 50 dates of hearing and during these prolonged hearings a question was also raised as to whether the judges of the constitutional court and the members of the Armed Forces enjoy exemption from the NAB Ordinance. I find that the generally professed opinion that members of the Armed Forces and the judges of the constitutional courts are not triable under the anti-corruption…. If we do not read and understand the observations made by the Court in Asfandyar in this way, the legal position would be clearly hit by the basic constitutional value and the non-negotiable fundamental right of equality before law. The other holders of public offices, in addition to facing the civil consequences of their corruption and corrupt practices, are to suffer criminal punishment of undergoing the sentence of imprisonment and the forfeiture of the unaccounted-for assets, while the members of the Armed Forces and the judges of the constitutional courts would go scot-free in this regard……Such reading and understanding of the observation of the Court would allow the members of the Armed Forces and the judges of the constitutional courts to be unjustly enriched and then allowed to retain this unlawful enrichment without any accountability, this would make the members of the Armed forces and the judges of the constitutional courts untouchable and above the law; any such reading would be reprehensible and revolting to the conscience of the people of Pakistan and bring the Court into serious disrepute. We must, therefore, strongly shun the above generally professed opinion and be clear that members of Armed Forces and the judges of the constitutional courts are fully liable under the NAB Ordinance, like any other public servant of Pakistan.”    

Malice Towards None & All: FBR, IMF & The Caretakers

The above observations should be an eye-opener for all the political parties, civil society, media and members of the legal fraternity in Pakistan. For years, our politicians have been nurturing and safeguarding the culture of cronyism and nepotism. Unfortunately, this culture is not only prevalent within parties, but also in state institutions. This is the biggest failure of democracy in Pakistan and not the imaginary/alleged interferences by the establishment that may be in security and foreign affairs, but not in internal affairs of political parties. Another failure of politicians has been the non-establishment of independent/inclusive accountability authority.

The new government, after the elections of February 8, 2024, it is widely believed, would be no different—no matter who wins, or as expected, there will be yet another hung parliament. The reason is simple - that collectively we have failed to establish a true democratic set-up that ensures implementation of rule of law and accountability of all, especially of state officials and public offices holders, that as per the above quoted brilliant judgement of Mr. Justice Syed Mansoor Ali Shah, includes judges and generals. The absence of the rule of law is an absolute negation of democracy. 

Will new elections in 2024 and the resurgence of the apex court end cronyism, nepotism, despotism, repression, bigotry, totalitarianism, oppression, tyranny, intolerance, denial of human rights, persecution of minorities and denial of access to justice from society? These all are the antithesis of democracy. Elections per se and the apex court’s orders cannot guarantee a democratic polity, rule of law and socioeconomic justice for all. The dispensation of justice is a sine qua non for democracy and regrettably, we lack it near completely. All hopes are now pinned on the CJP, that in the remainder of his tenure, he will take necessary steps to ensure it. 

Malice Towards None & All: A Distorted Tax Base & An Extractive State

The existing power structures, whether related to the executive, judiciary or legislation, belie good governance and democratic norms. No political party wants to dismantle these structures. On the contrary, politicians vociferously protect the interests of civil-military bureaucracy, landed classes and unscrupulous businessmen. This unholy alliance not only denies empowerment of masses, but also exploits them in the name of “democracy” and “national interest.” The real challenge is thus dismantling of this unholy alliance—which unfortunately is yet not on the agenda of any political party that is capable of making the new elected government in 2024 independently or with like-minded allies.