By Wahab Butt
A parliamentary democracy such as Pakistan which runs on common law principles has to abide by 3 core principles to function properly: the separation of powers, the sovereignty and supremacy of parliament and the rule of law.
The separation of powers between legislature and executive in Pakistan is an eyewash, thanks to the parliament that has confined its role to rubber stamping the decisions made by executive and which has proved itself unable to force the executive to follow its resolutions. This sluggish role of parliament has also undermined its authority entitled to it under the constitution of Pakistan.
Lets take the example of the ban on youtube. The ban on youtube was enforced by executive after the order from the court. But when in May this year, the parliament of Pakistan (National assembly) passed a resolution ‘demanding’ lifting the ban on youtube, the demand was politely ignored by executive. Under common law and Pakistani constitution, courts cannot overrule parliament’s legislation and executive, in general has to abide by the resolutions of parliament.
The weakening of parliament has thus lead to a crisis which common public cannot understand and which has widely been ignored by media but it disturbs the very roots of the tree which bores the fruit of our nascent democracy.
Another big blow to the separation of powers was our previous Chief Justice Iftkhar Chaudhry’s judicial activism and suo moto policy. Because under common law, courts are bound by ‘Law of precedent’, decisions made by supreme court affect all courts. When the supreme court started judicial activism by decisions such as fixing the price of sugar, or hindering privatisation, it entered the domain of executive. This precedent was followed by lower courts which resulted in deviation from their original job of ensuring justice to common people. So dangerous was the judicial activism that it ruined the very foundations of our legal system itself. For example in the case of murder of a student named Shahzeb in Karachi, supreme court at the highest level ordered for the case to be tried under charges of terrorism. This lead to hundreds of ordinary murder cases being transferred to Anti terrorism courts, over stretching them and further declining their capacity of giving speedy justice. Today we are preparing for ‘army courts’ because our ATC’s are incapable of delivering justice. May I ask how can the ATC’s deal with terrorism cases when both PM Nawaz Sharif and Imran Khan are booked by police under terrorism charges for different offences?
Perhaps the most important principle of a common law democracy ‘rule of law’ has suffered the most under the prevalent conditions. According to world justice project, the basic requirements of rule of law are ‘Limited government powers’, ‘absence of corruption’, ‘order and security’, ‘protection of fundamental rights’, ‘an open government’,’civil justice’, and ‘criminal justice’.
While I have explained how the government powers are not limited because of a rubber stamp parliament and how civil and criminal justice is not being delivered by the honorable courts, corruption, lack of safety and security and breach of fundamental rights is something all Pakistanis are aware of, and a simple glance at newspaper headlines anyday is enough to judge whether these principles are being followed.
It is indeed a matter of fact that for a society as polarized as ours and for a nascent democracy, these requirements are aspirational. But although society may not yet meet all the requirements, striving to achieve these objectives and to embed rule of law values is likely to guard against arbitrary government and defective justice system.
Currently our system can at most be defined as ‘rule by law’ (except no go areas) and ‘representation by elections’ (if they were not rigged as claimed). Pakistanis ask the question: ‘democracy’ are we?
Wahab is a civil engineer from University of Hong Kong and works in a top notch engineering firm. He is also associated with PTV News as the bureau chief for Hong Kong and currently enrolled in LLB at University of London (external program). He tweets @wahabtariqbutt