A new beginning is essential - Raoof Hasan - Wednesday, March 30, 2011

Source : http://thenews.com.pk/TodaysPrintDetail.aspx?ID=38884&Cat=9

Dedicated ‘to the harbingers of the days to come

Who, as fragrance to the rose

Are inseparable from their promise’

Faiz Ahmad Faiz (Translation: Khalid Hasan)

The history of the judiciary in Pakistan can be broadly divided into the pre- and post- Justice Iftikhar phases that present a fascinating contrast of extremes. While the first phase won infamy with adjudications based on the (now) defunct concept of the ‘doctrine of necessity’, the second phase is an evocation to the opposite extreme – the one that derives its strength and sustenance from its independence and the quintessential elements of jurisprudence.

There were bright sparks even during the first phase of the judicial history, but, by and large, they were comprehensively overwhelmed by adjudications justifying dictatorial interventions. That set a trend in the political history of the country which finds few parallels in the international annals. But, then, only the dictators are not to blame for the frequency of their assaults.

In spite of showing extreme courage while operating amidst an adverse environment, the independent judiciary, too, has shown some grey areas. Exhibiting an unwavering commitment to the cause of justice, the apex court has been bogged down with an inordinate pendency (of cases). One understands the numerous limitations that SC has had to address as the decisions in a few of these cases may impact the political careers of some principal players of the incumbent government, but meeting such challenges successfully is what should stand the independent judiciary apart.

One also understands the hesitation emanating from the fact that most of its previous injunctions have not been honoured. But, should the setback lead the court to stop issuing edicts for fear of non-compliance, or should it be used as further incentive to continue increasing the legal and moral pressure on an errant administration? A difficult equation, but the inherent advantages of following the latter are numerous while non-action does not present a remedy.

There has also been talk that the judiciary would proceed with issuing its judgements once it is assured of their compliance. This is a non-starter as the constitution has obliged it with adequate moral and administrative support to have its decisions honoured. This comes vide Article 190 that states: “All executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court”. Instead of sitting back and waiting for compliance to be assured, which would be contrary to the essence of justice, the apex court should act proactively and build the requisite constitutional pressure for implementation of its adjudications.

For any democracy to function efficiently and transparently, it is imperative that the political parties encourage a democratic culture within their ranks. If that were not so, the raison d’etre of a political party to demand democracy in the country ceases to exist. Conversely, the question arises whether such political parties should have the right to participate in the democratic process that may lead them to be hoisted in positions of authority? Because, after all, power becomes more legitimate when it springs from the barometer of moral authority. This critical paradox should be addressed by the SC at some early appropriate time.

Pakistan owes its creation to a dominant liberal struggle to give the Muslims of the Sub-Continent an opportunity to promote their social, cultural and economic freedoms. In no way, it called for a theocratic state. It was largely on account of this reason that the leading religious parties of undivided India had opposed the creation of a separate state for the Muslims and had even hurled invectives at Quaid-e-Azam’s person.

The spirit of Pakistan is brilliantly reflected in the Quaid’s historic address to the constituent assembly on August 11, 1947: “You are free. You are free to go to your temples, you are free to go to your mosques, or to any other place of worship in this state of Pakistan. You may belong to any religion or caste or creed, that has got nothing to do with the business of the state....We are starting with this fundamental principle that we are all citizens and equal citizens of one state. Now I think that we should keep that in front of us as an ideal and you will find that, in course of time, Hindus would cease to be Hindus and Muslims would cease to be Muslims, not in the religious sense because that is the personal faith of each individual, but in the political sense as citizens of the state”.

Instead of following the path of transforming the nascent state into a progressive bastion of prosperity, we have allowed the retrogressive forces to take charge and push the country to the brink of becoming a theocratic stronghold. The symbolism contained in the “Objectives Resolution” was the first stone hurled at dismantling the progressive legacy of the new-born state.

Ever since, the obscurantist forces have hoisted victory stands on the graves of the enshrining ideals of a leader who gave his everything for the fulfilment of the hopes and aspirations of an impoverished people reeling under the tutelage of dominant exploitative forces. The concept of Pakistan has been systematically impaired and its spirit brutalised. The country has been reduced to a turf for fighting among various feuding sects and groups. Reason has become a slave to edicts. If the country is to be freed from the clutches of backwardness, the progressive forces will have to unite to initiate the struggle to, quite literally, start all over again. Much has gone wrong, but nothing more than the dominant character of the state that was created on August 14, 1947. It has to be won back.

As to the people of the country, they are a sincere, simple but emotive lot, easily given to hyperbole and attractive slogans that may be devoid of concrete rationale. Their extreme passion can only be matched by their epic silence. Acting more on instinct, they are the virtual opposites of the virtues of unity, faith and discipline as enunciated by the Quaid. They need to be brought together on a platform of unity that is built on the enduring pillars of education, enlightenment and economic emancipation.

Pakistan faces the most serious existential challenge so far in its chequered history. It must move expeditiously to choose the path that best suits its interests. On the one hand is the prospect of the rule of law and transparency, and on the other is the fear of the forces of ignorance and corruption. The choice may appear simple, but the path is strewn with numerous impediments and deep-set prejudices.

There are no easy solutions. It is a difficult journey that must begin with a single step – a step directed to fight the proponents of obscurantism and darkness. The fault lines, embedded in the multiple failings of the governing system and the disproportionate societal responses, have to be erased. A culture of tolerance and co-existence must replace the germs of hatred and extremism. Pakistan is to be retrieved from the brink. A new beginning is essential. The state is to be liberated from the tentacles of individual authority and corruption so that a culture of transparency and equitable justice could bloom. Will the spectacle of captivity ever give way to an expression of freedom?


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