Karachi, Commemorating the 50th anniversary of Pakistan’s Constitution, Chairman of the Pakistan People’s Party (PPP) and former Foreign Minister, Bilawal Bhutto Zardari, delivered an address at the Supreme Court Bar Association’s celebratory event. In his speech, he lauded the role of the Bar in upholding law and constitutionalism in Pakistan, recounted the bipartisan support behind the formation of the Constitution, and highlighted the need to defend and preserve it, especially in the face of potential threats to democracy.
According to a news release by the Pakistan People’s Party, Chairman Bilawal expressed gratitude for being the first political leader to address the forum within the Supreme Court’s grounds. He emphasized the critical role the Bar Association has played, irrespective of its members’ political inclinations, in championing the rule of law and human rights throughout the country’s history. This continued commitment, he noted, stands as a testament to the Bar’s undeterred spirit in the face of political adversity and challenges.
The PPP Chairman recalled the unanimous support garnered by the Constitution, a landmark achievement orchestrated by his grandfather, Quaid-e-Awam Shaheed Zulfikar Ali Bhutto, with backing from various political factions and the federating units of Pakistan. This consensus, Chairman Bilawal noted, symbolizes a once-prevailing spirit of national unity and purpose, where political differences were set aside for the larger goal of nation-building.
As the country celebrates half a century of its Constitution, Mr. Zardari paid homage to the 24 members of the 1972 Constitutional Committee, the 1973 Legislative Assembly, and the legal community of that era. Recognizing their efforts, he termed them as “national heroes.”
Taking the opportunity to reflect on the judiciary’s role in upholding democracy, Chairman Bilawal expressed concerns over present-day threats to constitutionalism. Drawing on historical instances where the Constitution faced challenges, he urged for vigilance against any attempts to undermine this foundational document, which he described as the “soul of the State.” He lamented past judicial decisions that appeared to support the sidelining of the Constitution, invoking phrases like the ‘doctrine of successful revolution’ and the ‘doctrine of necessity’. In closing, Chairman Bilawal stressed the importance of remembering history, safeguarding the Constitution, and holding accountable those who jeopardize its sanctity.
Chairman Bilawal said that he has been a member of the Parliament for five years and has seen the role played by the judiciary from the perspective or the vantage point of the Parliament. The restoration of the judiciary is a result of orchestrated public demonstrations in March 2009, serving as a seminal incident in the judicial history of Pakistan that had a profound impact on the Judiciary-Parliament relations. In the words of a leading lawyer and member of the movement for the restoration of CJP Iftikhar Chaudhary, stated that the 2009 restoration as a result of public pressure had resulted in judges prone to arrogance and a Bar prone to violence. We witnessed unprecedented judicial activism in the wake of its restoration in 2009.
Chief Justice Iftikhar Chaudhary declared that not the Parliament but the Constitution was supreme and the Constitution was what the judges said it was, not what it actually said, not what the founders said but what he said. In 2010 once again, consensus within the Parliament allowed for the passes of the 18th Amendment and the restoration of the 1973 Constitution, for which we are grateful to President Asif Ali Zardari, Senator Raza Rabbani and the entire drafting committee. The 18th Amendment in 2010 closed the doors for the judges to legitimise constitutional abrogation and barred them from taking oath under the PCO and they could no longer, at least in theory, uphold the subversion of the Constitution.
The scope of the punishment for abrogating the Constitution under Article 6 also widened to include those who upheld the abrogation. It was thought that the doors for the dictators had been closed but a new kind of dictatorship emerged. Previously, the Parliament was sent home by the executive order of the President that was endorsed by the judiciary. After the 18th Amendment, that was made impossible. The judiciary started sending prime ministers home on its own, thus former prime minister Yousaf Raza Gillani was sent home for not writing a letter to the Swiss government to implicate his own President in a criminal case even though the Constitution protected the President from prosecution as long as he was in office. The Pakistan Peoples Party survived it by nominating another MNA as the PM. The next government that followed the PPP also met the same fate. PM Nawaz Sharif was sent home. It is unfortunate but must be mentioned that in the 2013 general elections, the judiciary under Iftikhar Chaudhary became a partisan actor with clear favourites in the elections. In 2018, the judiciary once again became a partisan actor with clear favourites in the elections. It is hoped that this time it will be different. That is of course, if we have elections.
Chairman Bilawal said that the PPP has been demanding an election date and its schedule since the Parliament’s term ended to no avail. Regardless of his well-known opinion on the 90 days, which may now have become a moot point, our right to have an election is absolutely indisputable. At the time of the conflict over elections in the provinces of Punjab and KP, the Party and I made the sincerest efforts for political dialogue, consensus and to resolve a constitutional, political and democratic crisis, he said. Our aim was to reach a consensus on election dates not only for the provinces of Punjab and KP but also the general elections. Unfortunately, the events of May 9 stymied these efforts and today we find ourselves where we are.
Let us be clear, elections delayed are elections denied. The only path forward is for the Election Commission of Pakistan to immediately release the election date and schedule without any further delay, Chairman PPP said. Given the events that we witnessed over the weekend, I trust this shall be no further delayed, Chairman Bilawal said. It is only through a free, fair and impartial election where all contenders have a level and equal playing field, and the citizens of Pakistan are allowed to exercise their right to vote and in choosing their leaders that we will be able to go forward. Chairman Bilawal said that during his tenure as the Foreign Minister, he met with another prominent foreign minister from a country where they do not have or understand elections. He was asked what these elections are and why we need them.
Chairman Bilawal explained that the people of Pakistan are a very emotional nation and they are vital for catharsis. If someone does not like me, or if I made a mistake in the past five years and meted out any injustices, then the Pakistani people have that one day only to hold me accountable. Since the PPP is a democratic party and that the Constitution is given by Quaid-e-Awam, for which Shaheed Mohtarma Benazir Bhutto sacrificed her life, which was restored by President Zardari and the PPP through the 18th Amendment to complete the unfinished struggle of Shaheed Mohtarma Benazir Bhutto, there is no other option for us than to demand for the elections to take place and their date and schedule to be announced. Our desire is that the ECP announces the election date and schedule on its own, while completing its legal and constitutional obligation instead of another institution giving it the instructions to do so.
I expect that in interpreting the Constitution, the judiciary will expand the powers of all democratic institutions, not merely its own, Chairman Bilawal said. We have however witnessed that in interpreting the Constitution in the past, the judiciary has enhanced only its own power and undermined that of other institutions. We value the independence of the judiciary and it is the cardinal principle of a democratic society. However, I sometimes feel that the independence of the judiciary has taken far too far to meaning its independence from the law and the Constitution itself. We believe in the accountability of all under the same law by the same institutions. Independence of the judiciary should not mean its independence from accountability. A reference was filed by over a hundred civil society representatives from all walks of life against a Chief Justice of Pakistan while he was holding office. The reference was not heard by the Supreme Judicial Council for as long as the Chief Justice was in office. When he retired, the reference was returned to the petitioner as having become infructuous. This raises some questions about accountability particularly because the honourable judges are so fond of claiming and proclaiming their fondness for accountability, particularly when it comes to civilian political leaders.
Every prime minister has presented themselves before this institution [Supreme Court] in one way or the other. One can then imagine that the honourable judges would be the first to present themselves for accountability before their own accountability institutions, Chairman Bilawal said. He said that there are recent developments that have raised our concerns. Members of the Bar may not agree, but the recent decision on the Practice and Procedure Act has raised the hopes of the Parliament. When President Zardari went from being the most powerful civilian president in the history of Pakistan, having inherited all the powers from a dictator who had usurped those powers from the Parliament and the PM, to the most ceremonial president in the history of Pakistan. He gave his own powers back to the Parliament and the PM. That was a high point in Pakistan’s democratic journey. In the same manner, the full court bench has given hope that the Parliament’s power, domain to legislate will be protected even if it means that the sitting Chief Justice is to share his powers as ‘Master of the Roster’ with fellow senior judges, which is an encouraging sign for the future of the judiciary and Pakistan’s democracy.
The procedure for the appointment of judges also needs to be reviewed. The present procedure which under the President, PM, and the Parliament has become all but a rubber stamp and as post offices has raised the criticism of judiciary of the judges, by the judges and for the judges. This does not augur well for the image of our judiciary. Similarly, the contempt law must also be revisited as the dignity of the honourable judges must rest on foundations that are surer and more solid. Respect for judges must be inspired by their judgements and conduct and not by the fear of a contempt law. A great challenge we face in the realm of rule of law and human rights is the enforced disappearances of citizens with impunity. The commission on enforced disappearances has unfortunately failed miserably. Not one perpetrator has been persecuted thus far and this is not acceptable. Another great challenge is the manipulation in elections and power transfer. Indeed, manipulated power transfer lies at the root of political instability and the election schedule must be announced immediately and a level playing field be ensured for all political parties.
Referring to the presidential reference regarding the judicial murder of Shaheed Zulfikar Ali Bhutto, Chairman Bilawal said that the reference is pending for almost a decade before the Supreme Court. In this golden jubilee year of the Constitution, is it too much to ask that respect to the political leader who gave us the country’s first unanimous Constitution is given without further delay and justice is served even if posthumously, Chairman Bilawal asked? They say that history repeats itself, first as a tragedy and then as a farce. Shaheed Zulfikar Ali Bhutto was martyred and Shaheed Mohtarma Benazir Bhutto sacrificed her life after 30 years of struggle for the Constitution and her father. Neither did she attain justice for her father, nor were we able to attain justice for her. Then, President Zardari filed a reference in 2011 without justice being served. Then in 2018/19, he [Chairman Bilawal] himself expressed his desire to be a party in the reference and that it is heard immediately. As of 2023, I am before all of you. He said that he does not know at which point this tragedy became a farce.
Chairman Bilawal said that he believes that Pakistan is stuck in a rut and if we continue down this path, we are doomed. We are doomed to repeat history, perpetuate a tragedy or doomed to make a farce out of the country, its institutions, democracy and people. Throughout our history, we have oscillated between outright dictatorship, controlled democracy or confrontational democracy. Of controlled democracy, the Junejo government and IJI are an example as well as the recent happenings. This is the old way of doing politics, the tried and tested way which has proved that when democracy is compromised in any shape, way or form the country, its people and economy suffer. However, there is a fourth way and that is of democracy based on consensus. In short little windows, we have witnessed this consensus. We have seen that once we achieve consensus, we are able to progress, of which the 1973 Constitution and the Charter of Democracy, Restoration of Democracy, NFC Award and even the National Action Plan are an example. It is in the very spirit of consensus democracy, that Pakistan’s democracy will not only survive but thrive. We will need this consensus within all institutions, including the Parliament, judiciary and all others. We would have to establish this consensus not only within institutions but between them as well. We made efforts to establish the very same consensus. It was the basis behind our support of the PDM and the unity government. We had to correct the wrongdoings of the past and rid the country of the selected rule, while getting ‘Izzat’ for the vote and the Parliament while showing all anti-democratic forces how things are run and former rivals move forward together despite differences for the sake of the democracy, Constitution and the country. However, it is after this that I have come to the realisation that the ‘Road to hell is paved with the best intentions’, Chairman Bilawal said proverbially. We were seeing institutions turn neutral overnight.
The old politics of hyper-partisanship and hyper-polarisation must end within the Parliament, judiciary, society and the Bar. if we want to become a just society, then we would have to tolerate a difference of opinion. We must use the Parliament and judiciary and other such institutions and bodies to forge consensus in order to resolve problems, not as bitter partisan arenas for us to create problems. We owe it to the people of Pakistan to start functioning as a modern country, with a functioning government system, Parliament, judiciary and Constitution. There would be no better way to celebrate our golden jubilee than to deliver on these promises to the people of Pakistan. Let us end the stale politics of the past and embrace a new politics of consensus, Chairman Bilawal said. While on the 50th Golden Jubilee of the Constitution, I cannot say that democracy is stronger today than it was yesterday, but can promise that the tomorrow of the coming generations of Pakistan will be better than our today, Chairman Bilawal resolved.