The Senate on August 10, 2017 proposed an intra-institutional dialogue amongst the military, judiciary, parliament and the executive on the way forward after the disqualification of former prime minister Nawaz Sharif and the subsequent political fallout of that Supreme Court (SC) decision. During the discussion on the proposal, there seemed to be a convergence of views on either repealing or suitably amending Articles 62 and 63, which provided the basis for the SC’s verdict. Senate Chairman Raza Rabbani argued in the house and subsequently on other forums that an institutional clash was not in the interests of anyone, certainly not the country, and to avoid that, an intra-institutional dialogue had become the need of the day. A Senate Committee of the Whole would soon be convened to finalise the steps necessary to bring about such a dialogue. In the house there also seemed to be an emerging view that Article 184(3) should be amended to provide for appeals against the SC’s decisions on questions of fundamental rights. Most speakers, while dilating on these issues, provided the harshest ever criticism of the military and judiciary for the second consecutive day running. Former prime minister Nawaz Sharif too came in for a bit of stick, particularly from the opposition PPP. The party’s Senator Farhatullah Babar perhaps best summed up the issues by first criticising Nawaz Sharif’s track record and then posing four fundamental questions to the house. Babar roundly critiqued Nawaz Sharif’s culpability in weakening parliament (by largely ignoring it); rejecting repeal or amendment of Articles 62 and 63 when the 18th Amendment was being discussed; rejecting the setting up of a constitutional court with equal number of judges from all the provinces after agreeing to it in the Charter of Democracy; seeking the disqualification of the PPP’s former prime minister Yousaf Raza Gilani through the courts, and joining hands with the establishment against three PPP governments (including rigging the 1990 elections). Despite that, Senator Babar continued, he could not support the SC verdict, which reminded him of the Maulvi Tamizuddin Khan case in the 1950s. In that case, a technicality had been relied upon to disband the constituent assembly. In the present Panama case, parliament mercifully remained intact but a prime minister was disqualified on a technicality of another kind. This throwback to the past should make parliament wiser, he said. The country has been reeling from crisis to crisis since the infamous Maulvi Tamizuddin Khan case. Parliament should now rise above partisan considerations. Senator Babar then posed four questions to parliament. (1) Will parliament define sadiq and ameen, which remain undefined even under Article 260? Are these terms only to be applicable to members of parliament? Whether judges are sadiq and ameen even after taking oath under a PCO and ‘legalised’ subversion of the constitution? Whether a General epitomised sadaqat and amanat even if he suspended the constitution and when tried on that charge, fled the court and was given protection in a hospital where the police could not enter? (2) Since the Panama Papers were about accountability, will parliament take the bull by the horns and make legislation for across the board accountability of all the high and mighty regardless of whether they were elected representatives, judges or Generals? (3) Whether parliament must permit the use of Article 184(3) in which no appeal lies, contravening thereby the provisions of Article 10-A, promising a fair trial? (4) Whether parliament would now proceed to create a constitutional court as envisaged in the Charter of Democracy?
The debate in the Senate has squarely put its finger on the fundamental flaw in Pakistan’s constitutional and political structure. While the dialogue proposal and its accompanying critique and arguments are unassailable on the touchstone of logic and cannot therefore be easily dismissed, it tends to ignore the elephant in the room. Putting the genie of an overbearing military establishment back in the bottle merely through a dialogue appears difficult, if not a pipe dream, especially given the state of mutual mistrust and suspicion currently rife amongst the institutions named in the proposal. Only if the politicians deliver to the people and carve out a credible system of democratic governance will it be possible to arrive at civilian supremacy over the armed forces in the long run, and that too not without a concerted and consistent political struggle that places parliament centre-stage in the affairs of the polity and state.