The heavens have fallen: Pakistan’s failure to uphold the constitution

The maxim "Let the Heavens fall but justice be done" represents a bedrock principle that calls upon a nation to unwaveringly adhere to the rule of law, regardless of consequences. The constitution embodies the principle and must be upheld at all costs even if it means great hardship. Failing to do so will result in even greater injustice to the people of Pakistan and further erode their already limited trust in the system. The danger of democracy's collapse may not seem immediate, given that there is a half-populated parliament, but a series of aberrant steps recently taken have eroded the fundamental tenets of the constitution. The limited progress that Pakistan has made towards establishing democracy may be on the verge of being lost.

The lawyer Salman Akram Raja warns, "With the provincial assemblies being dissolved and elections not being held within the constitutionally mandated 90 days, the heavens have fallen." Yet the government and its agencies continue to prevaricate on this inviolable principle.

The failure to hold elections for the respective assemblies in Punjab and Khyber Pakhtunkhwa within 90 days of their being dissolved not only denies citizens the fundamental right of elected representation but also puts in jeopardy the prospect of conducting commerce in a secure and predictable environment in the two provinces in the country. With provincial caretaker administrations that have no legal sanctity, all contracts with provincial bodies may at a later date stand void. It is also unclear how an unconstitutional caretaker administration mandated only for 90 days will be able to pass annual provincial budgets. Additionally, the already low level of confidence that the general public has in being provided justice fairly and impartially, will further diminish. The paltry international investment into the country is likely to come to a grinding halt when it is apparent that there's no sanctity for even the most fundamental tenet of the law.

The evidence shows that a higher level of economic development is intrinsically tied to the prevalence of the rule of law. Countries with stronger rules of law tend to have higher levels of investment, trade, and economic growth. Without the rule of law, individuals and businesses cannot trust that their rights and property will be protected by the legal system.

The ongoing constitutional crisis exacerbates Pakistan's precarious debt sustainability. It already faces a difficult task in avoiding default on its international credit.

Javed Hassan

A study by the World Bank found that countries with stronger rules of law tend to have higher levels of investment, trade, and economic growth. World Development Report 2011: Conflict, Security and Development states, "Investors, both domestic and foreign, seek stable and predictable environments in which to invest. This requires secure property rights, effective enforcement of contracts, and an independent judiciary to resolve disputes.” It adds “A strong rule of law can help to prevent and manage conflicts, which can, in turn, promote economic growth and development." Similarly, the 2006 IMF publication ‘The Quality of the Legal System, Firm Ownership, and Firm Size in Transition Economies’ underscores that a strong Rule of Law is positively associated with economic growth and can also reduce income inequality. Without the rule of law, individuals and businesses cannot trust that their rights and property will be protected by the legal system. Creating a stable and predictable environment that operates under the protective umbrella of the constitution is therefore considered a prerequisite for economic growth and development. It may be for these reasons that multilateral development agencies require countries to operate within constitutional frameworks to qualify for funding.

The ongoing constitutional crisis exacerbates Pakistan's precarious debt sustainability. It already faces a difficult task in avoiding default on its international credit. Even if it completes the current IMF program, it is almost certain that it will have to have a new program to avoid disorderly default and economic implosion. It is therefore imperative that there is a dispensation in place, not only nationally but in all the provinces, that can be seen to be upholding the Constitution of Pakistan.

While the Election Commission of Pakistan's failure to hold elections within the mandated period is now upon us and will cause much harm, the trampling of the sacred script should not lead to compromise with those responsible for such acts of omission and commission. Rather, it is an opportunity for the honorable Justices to put the nation back on the rail toward the much-cherished vision of a democratic Pakistan where the rule of law is unquestioned.

The Supreme Court can give new birth to a renewed dedication to Jinnah's endeavor of a democratic and prosperous Pakistan. Not only must they ensure that elections are held as close to the 90 days specified in the constitution as possible, but they must also penalize those who have conspired to deviate from it. This will serve as a stern warning to any that may be tempted to do so for all times to come.

– Javed Hassan has worked in senior executive positions both in the profit and non-profit sector in Pakistan and internationally. He’s an investment banker by training.

Twitter: @javedhassan