Constitutionally assigned domains?

With the enactment of the consensual constitution on August 14, 1973, the Islamic Republic of Pakistan attained the status of a ‘Constitutional Democracy’. Despite the passage of half a century the ‘Assigned Domains’ remain fuzzy. After the painful events of May 09, 2023, the confusion has increased manifold. The sitting government has consented to hold trials in military courts of the protestors who violated the security of the Corps Commander House in Lahore. Justice Jawad Khawaja, the former Chief Justice of Pakistan (CJP), has filed a petition in the Supreme Court (SC) with the prayer; “ When civilian courts were functioning, civilians not in active service could not be tried in military courts “. 
Justice Khawaja is no ordinary law giver. He singlehandedly triggered the ‘Lawyers Movement’ in 2007 when he was the first judge to resign from the Lahore High Court (LHC). He came to the court premises, tendered his resignation, handed over his official vehicle and drove back in his personal car. Though a very private individual who seeks no personal glory yet during a private conversation, he admitted that the dismissal and manhandling of the then CJP was unacceptable to him. He wanted to lodge the strongest possible protest which was stepping down from the bench. After him, several other judges followed suit and it became a combined movement of the bench and the bar for the ‘Rule of Law’. The Long March that followed was spectacular. The nation stood up against the dictator and his supra-constitutional acts which resulted in the removal and arrest of several superior court judges through the use of force.
The United States of America is the world’s oldest written constitutional democracy. Enacted in 1787 by the founding fathers it has been hailed as the ‘Miracle of Philadelphia’. As written, the 1973 constitution of Pakistan is no small feat. Pakistan has a history of constitution bashing and abrogation which must end. Interesting debates against this basic agreement between the rulers and ruled have taken place. Ayub Khan, the first usurper, abrogated the 1956 version thus laying the foundations of the break-up of Jinnah’s Pakistan. Zia openly showed his disdain for the document and used derogatory words like; “I can tear and trash the constitution “. Musharraf was more worried about the state that was under his rule instead of the people he was required to serve. 
Currently there is a debate that human rights are subservient to the interests of the state as defined by the rulers. Yes, interests of the state are supreme as defined by the constitution,not individuals in power. The ‘Constitutional Assigned Domains’ have to be respected and obeyed. However, there is a constitutional provision for promulgation of emergency in case of a serious calamity or threat but again the courts have jurisdiction to review the same. There can be no compromise on human rights as they are non-negotiable. Under Article 245, the Armed Forces can be called in aid of civilian law enforcement agencies but the fundamental rights cannot be taken away. Misuse of this clause by the present government is a serious violation of law which will not go un-punished.
Today after half a century of abuse, the constitution stands almost abrogated. After the promulgation of the constitution in 1973, developed by elected representatives of the people, colonial and dictatorial laws should be have been declared null and void. All unconstitutional laws have to go. Recently the government has launched an Economic Revival Plan in which the support of the army has been highlighted. The Chief of Army Staff (COAS) also addressed the gathering. While the Fauji Foundation and its affiliated industries are all headed by civilian professionals, the rulers have invited men in uniform to help them. All they can ensure is security for which they should be tasked to present their plans.
During his time as the Chief Minister of Punjab, the current PM handed over two large universities to retired generals. The senior professors were not comfortable with these appointments. In one of the sessions questions were raised about theircompetencyin heading academic institutions. Prompt came the reply “ Generals are trained to handle all situations “. Yes, the security situation improved but at the cost of academics. 
Constitutional domains are well defined. By inserting Article 6 in the constitution, Bhutto was convinced that no one will ever dare to cross the line but he has been proven wrong. After the conviction of Pervez Musharraf under Article 245, the law is being stretched to deny human rights which cannot continue for long. The decision by the apex court regarding the trial of civilians in military courts operating under the Army Act of 1952 will be a test of the applicability of the constitutional framework. It should not end here; the supremacy of the constitution should be established for all times to come. After over 75 years of its coming into being, Pakistan finds itself at the cross roads of real freedom but this time the stakes are very high. Hopefully sanity will prevail with strict enforcement of constitutional domains. Only the constitution and rule of law can protect internal security. Otherwise turmoil will continue.

The writer is Ex-Chairman Pakistan Science Foundation, email:

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