Democracy, constitutional rights and accountability

Lot can be learnt from historic judgement penned down by Justice Maqbool Baqar in Khawaja brothers case

Usually, the Supreme Court judgements in bail cases only attract the attention of practicing lawyers. These judgements mostly are of academic interest. But few judgements even in the bail cases can become milestone judgements. Justice Maqbool Baqar of Supreme Court of Pakistan has penned down such a milestone judgement in Khawaja Saad Rafique and Salman Rafique's case. 

Some paragraph of 87 page judgement offer us food of thought if we are ready to face facts.
The judgement laid bare the state of democracy, constitutional rights and accountability. This judgement is a timely reminder for those in power to correct the direction and reform the system.   One national assembly and one provincial assembly member were remained behind bars for nearly one year in case that Supreme Court says NAB has failed to establish. If well known  politician like Saad Rafique could be imprisoned in a cooked up case then imagine what could happen to ordinary helpless people.
The judgement made important observation on the violations of constitutional rights.   

According to the judge, it was unfortunate that "even after 72 years since the creation of our country, and despite 47 years since the adoption of the Constitution, we have not been able to realize the spirit and essence of the ideals set out therein".

"To the contrary, we have even failed to adhere to some of its most basic commands and prescriptions. The people of this country are frequently denied their constitutionally guaranteed rights. Principles of equality, fairness, tolerance and respect for democratic norms are flouted with impunity."Dogmatism, intolerance, nepotism, cronyism, incompetence, regression, deception, false pretence, self-projection, misplaced sense of superiority, different biases, and prejudices, and corruption have seeped into our society and have now inundated it."Efforts, whenever made for the supremacy of the Constitution, and the rule of law have been thwarted with full force. The principle of trichotomy of power and the concept of devolution have been trampled with contempt.

The judgement also pointed out the the history of manipulation and interventions of undemocratic forces. The judgement says that "Arrogance, self-righteousness and apathy are ruling the roost. We have come to this unfortunate pass, in most part, because of the repeated direct unconstitutional interventions, and manipulations by undemocratic forces."Lust of power, desire to capture, and rule, and pursuit of self-aggrandizing, have resulted in violation of the prescribed jurisdictional limits and ceding of political space in governance."Aggravating this is the denial of grass root representation of the people in the local government, which again is against our constitutional ethos, and violates the true essence and spirit of democracy. Public welfare and poverty alleviation are at the lowest rung of our priorities."The wide spread suppression of dissent is another anathema to our democracy. An egalitarian order remains a distant dream," the judge wrote in his verdict.

Justice Baqar went on to say that the present case was "a classic example of trampling fundamental rights, unlawful deprivation of freedom, and liberty and the complete disregard for human dignity as guaranteed by the Constitution".

Unfortunately, we havn't learn from our past mistakes and continue to repeat the same mistakes again and again expecting different results.   

This judgement is a charge sheet against NAB and accountability. The time has come that both the government and opposition should sit together and develop consensus on a new independent and impartial accountability commission for across the board accountability. Prime Minister Imran Khan and PTI government should rethink their accountability drive through the NAB. 

 The top judge slammed Pakistan's anti-graft watchdog, the National Accountability Bureau (NAB), over various actions and processes, saying its "conduct throughout this case is a clear manifestation of their utter disregard for law, fair play, equity and propriety".

"Indeed, curbing loot, plunder and combating corruption is a noble cause. Nonetheless, the means, process and mechanism employed therefore should be within the parameters as prescribed and mandated by the law and not in derogation thereof.

"As per the preamble of the National Accountability Ordinance, 1999 (“NAO”) the bureau has been set up to eradicate corruption and corrupt practices and hold accountable all those persons, accused of such practices and matters ancillary thereto," the ruling added further.

It explained what the laws led to as opposed to what they were enacted for. "Rather than doing any good to the country or our body politic and cleansing the fountainheads of governance, these laws and the manner in which they were enforced, caused further degeneration and created chaos, since the same were framed and applied with an oblique motive of arm twisting and pressurizing political opponents into submission, subjugation and compliance, or remove them from the electoral scene at least temporarily," it read.

"These laws were successfully employed as tools to change political loyalties, for splintering and fracturing political parties.

"Pygmies were selected, nurtured, promoted, and brought to prominence and power. People with notorious backgrounds and criminal credentials were thrust to rule us in various capacities with predictable results.

"Similarly, those, who caused death, destruction and mayhem in our society were trained, financed, protected, promoted and eulogized, thus, turning them into Frankensteins.

"Meanwhile corruption, misconduct and malpractice in governance kept growing at exponential rates and became all pervading. None of the state institutions whichsoever remained free from this morass," the SC ruling stated.