ALL governments claim to provide good governance and demand citizens’ obedience on this ground. How can such claims be verified? The academics have several formulas for doing that. They will examine a government’s adherence or otherwise to the state’s Basic Law, its conventions (if any), and its laws. Reference will be made to the efficiency and speed with which the business of the state is conducted. The success of economic and external policies will be examined. The government’s record in honouring its pledges to the citizens and its social welfare programmes could be taken into consideration.

These tests are inadequate as they relate to only a half of the balance-sheet — what a government gives the citizens. For a full assessment of the goodness of governance it is also necessary to determine what a government takes from its citizens, as all forms of government are based on give-and-take between authority and the people.

The principle of give-and-take was visible even in the tribal stage of social evolution. A tribal chief was considered good or benevolent if he gave the members of his tribe more — in terms of security, justice and economic well-being — than what he took from them, in respect of obedience to his commands, levies, and sacrifices during conflicts, internal as well as external. a malevolent, inefficient and oppressive tribal chief could retain his status so long as he possessed the power required to enforce his writ but he could never be accepted as a just or even a good authority.

The same could be said of monarchs who treated the people over whom they reigned as subjects. Far-sighted kings maintained a balance between what they gave their subjects and what they took from them. The decision about the measures for give-and-take were determined by themselves. If the demands of the throne became excessive, popular uprisings could occur and the subjects could oblige the king to mend his ways and give them more, failing which they could look for another monarch.

The rise of republican and democratic ideas altered the situation to the extent that citizens became sovereign and they decided on what to give the state and what to take from it.

Good governance came to be defined as an order in which the state took from its citizens less than what it gave them, or at least the two values were kept at par with each other.

The governments that the people of Pakistan have been living under can be judged in terms of give-and-take. However, two factors have always affected the application of the criteria. What a government gives is often tangible and it can be within the experience of the people, at least of a majority, if not all of them, while what it takes is not known or understood by all, resulting in situations when distinctions between good and bad governance are not easy.

Besides, comprehension of what a government takes from its people depends on the level of discernment achieved by them. An ignorant populace may not realize what a government is taking from it. The citizens’ demands on authority have also been determined by their consciousness of their rights.

Our people’s first experience of post-feudal rule was the colonial government (1858-1947). It gave the people many good things. It offered relief from the pre-1858 anarchy, guaranteed security of life, freedom of movement and association, established a judicial system, built an irrigation system, opened educational institutions, built roads and railways, trained bureaucrats and the police, set up hospitals, made the colony a member of the League of Nations, established justice among the natives, and recognized even the right to demand freedom.

What it took from the people was the ownership of their land, the right to be governed exclusively by their chosen representatives, the right to find their own solutions to the demands of justice and education, the right to a fair price for their produce, the choice to join or not to join a world war, and their history of mutual accommodation among different religious communities, and even the right to a peaceful partition.

For a long time the people wee satisfied with what the colonial government was giving them. In the beginning only a small number of them could see that it was taking from them more than it was giving them. It took the population many decades to realize that the give-and-take equation was unfavourable to it and once it had done that the empire had to give up the jewel in its crown.

Nobody can describe the colonial government as good governance regardless of the value one may put on its effectiveness, which is often confused with efficiency.

The governments during 1947-58 gave the people a great deal. They established a state structure and an administration, wrestled with the refugee problem, started some industrialization, introduced adult franchise, established the writ jurisdiction of high courts, introduced planning of economy, opened new colleges and universities and adopted a constitution. What these governments gave the people was tangible and visible to the entire population.

What these governments took from the people was their right to be ruled by freely elected representatives (through manipulation of provincial elections in the western wing in 1951 and postponement of election in the eastern wing till 1954, and dismissals of all provincial governments), the people’s right to live and manage their affairs as semi-autonomous federating units (through the creation of One Unit), their right to the recognition of their languages (especially of the majority), their right to their land and cities (through forcible separation of Karachi from Sindh), their right to due share in wealth produced by them (misappropriation of East Pakistan’s foreign earnings), their civil liberties, and the choice of staying out of the cold war. Since what the governments took from the people was not always tangible and the impact of various instalments of the taking on the population was neither uniform nor simultaneous, they took long to realize that the give-and-take equation had become adverse for them. But before they could bring about a change according to their lights, the military intervened and deprived them of the opportunity to set matters right.

Few would credit the 1947-58 regimes with good governance. The Ayub regime also gave the people many things. It gave them the illusion of relief from the disorder under the preceding government, lowered the prices of consumer goods, made the urban settlements cleaner, enlarged the country’s industrial base, modernized the armed forces, expanded the educational facilities, pushed up the rate of GDP growth, brought TV into households, built dams and barrages, promulgated Muslim Family Law Ordinance, altered the external policy, and gave the state a kind of stability.

For all this, it took away from the people the right to directly elect their representatives, their freedom of expression through control over the print media and the arts, their right to equality of opportunity, their right to a just share in prosperity, their right to freedom of association and formation of political parties, their right to know the truth about the 1965 war, and their right to be governed under a constitution made by their representatives.

The events of 1968-69 proved that the Ayub regime’s claims of good governance were decisively rejected by the people.

The Yahya regime gave the people a basketful of attractive offerings. It accepted the principle of one-man, one-vote, ended the monstrosity of One Unit, held the first general election, devised a forward-looking labour policy. But it took away the people’s right to define the post-election agenda, deprived a majority of the population of security of life, robbed them of the choice between war and peace and deprived them of the right to know what was being done in their name.

What the Bhutto government (1971-77) gave the people makes an impressive reading. It built on the debris of the 1971 conflict and revived the people’s confidence in their state, secured the return of territories lost during the war on the western front as well as the repatriation of Pakistani POWs. It gave the country a constitution based on a greater consensus than was the case in the earlier versions.

By enlarging the public sector it committed the state to a greater role in the people’s economic advancement. It realized the founding fathers’ goal of solidarity among Muslim states. And it began the march towards becoming a nuclear power.

But what it took from the people also forms a formidable list. It robbed the people of the dreams of 1970-71 and of their political unity regardless of belief. It undermined their belief in the sanctity of the Constitution and in the domination of politicians over the state apparatus, and it trifled with the people’s right to free, democratic choice.

Eventually the number of people prepared to save this government from Gen. Zia’s assault was smaller than those that had brought it into power.

The Zia regime is said to have given much to the people — that it Islamized the state and the laws, reconverted the Muslims to Islam, made their state capable of using nuclear weapons, brought US aid, turned a hostile Afghanistan into its surrogate, and rid the people of the ‘vicious’ party system.

What it took from the people was their sovereignty, the freedom of their belief, the dignity of the woman, their political unity regardless of belief, the protection against the drug baron and the militant cleric, and their right to sing and smile.

The record of post-Zia governments is not very helpful in determining their merits because they were client governments and were unable to alter the give-and-take equation established by the Zia regime. However, since they were perceived to be taking more from the people than they gave them, they also took away from the citizens their faith in politics.

Once again the people of Pakistan are being told to accept a particular order only on the basis of what the government is giving the people. They are being advised to value stability in terms of irreversibility of changes made by the regime, to appreciate the revival of joint electorate and grant of space to women in legislatures, to enjoy the rhetoric of liberalism and freedom from corrupt politicians.

What it will take from the people is not easily comprehended and this part of the balance-sheet will be revealed in the months to come. Yet a few things the people are being asked to surrender can be seen and the list is by no means small.

However, if history is any guide, there should be little difficulty in realizing that regardless of what a government gives its people, in the final analysis, its merit is determined by the degree of respect it shows for the citizens’ basic freedoms and rights. A trade-off between rights and material gains has never been accepted beyond a period the people take to appreciate in real terms the give-and-take equation in governance.

IN his recent “neighbourhood diplomacy” which took him to Dhaka and Colombo, President Pervez Musharraf took a major step in his bid to muster support for Islamabad in the region. He expressed “regrets” at the “excesses” committed 31 years ago by the Pakistan Army in what was then East Pakistan.

Thus he emerges as an army general with the moral courage and dignity to concede the wrongs done by his predecessors, the power-hungry rulers of the day who unfortunately also happened to be men in uniform. Earlier in 2001, he had released the Hamoodur Rahman Commission report, which exposed the wrongdoings of those at the helm in 1971.

Such is the political power structure in Pakistan that no civilian government — there have been nine of them in the intervening 30 years — has found itself in a position to release this report or offer an apology for the 1971 carnage. Nawaz Sharif, it is claimed, tried to make amends during his visit to Dhaka in January 1998. But all he could get round to telling the Bangladesh leader, Hasina Wajed, was that the March 1971 action was “militarily and politically wrong” — more of a comment than an apology. But these words, if they were uttered at all, were said behind closed doors for they were not reported in the press.

It was left to the Women’s Action Forum to first admit publicly that excesses had been committed in 1971, and extend an apology in unequivocal terms to the women of Bangladesh. In its statement in March 1996, on the 25th independence anniversary of Bangladesh, WAF condemned the role played by the state in 1971. It spoke of the need to focus on the systematic violence against women, particularly mass rapes, and apologized to “the women of Bangladesh that they became the symbols and targets in the process of dishonouring and humiliating a people”.

There is a school of thought which strongly believes that the past should be buried, as Musharraf has also advised. One cannot quarrel with the logic of this view. But given the fact that the human psyche is shaped more by emotions than rationality, won’t the past be buried better if the wounds inflicted by history are allowed to heal and reconciliation takes place? That is why rulers who genuinely want to promote a culture of tolerance, justice and peace, try to channel the anger of the people into a cathartic process.

South Africa is an outstanding example. In 1994 Nelson Mandela managed the political transition to majority rule with sensitivity and humanism in his approach. In the process, he ensured that the seething anger and humiliation born of decades of ruthless and oppressive apartheid did not spill over to engulf the country in a racial bloodbath.

The Truth and Reconciliation Commission before which the victims could appear initiated a process which absorbed their anger and bitterness, although this body didn’t have any judicial powers and could not indict anyone. But people like de Klerk, the last white president of South Africa, tendered apologies for the crimes of apartheid.

This was not the first time that past wrongs were so addressed. There have been numerous examples of serious human rights violations being taken up retrospectively by impartial third parties. There were the Nuremberg trials after the Second World War and more recently The Hague tribunal trying the Serbian soldiers for war crimes in Bosnia.

The explosive issue of the “comfort women” — the women who were forced into sex slavery by the Japanese soldiers in Korea during the Second World War — refuses to die down more than 57 years after the war ended. International women’s groups have brought it up repeatedly in spite of a blanket apology offered by Japan for the sufferings it caused to the people of Korea.

Admittedly, all these cases are of only the vanquished being brought to the dock while the victors have escaped indictment. But that does not detract from the gravity of the crime committed.

One can well ask if it is really necessary to reopen old wounds to bury the past? There are two aspects of the issue worth noting. First there are the political implications of the crisis of 1971. Secondly, there is the human rights dimension. Both are important and should not be swept under the carpet if history is not to repeat itself.

The East Pakistan crisis in 1971 had far-reaching political repercussions, the most significant of which was the break-up of the country. Strangely enough, not much research has been done on the consequences of the secession of Bangladesh for the geopolitics of South Asia, the economy of the region and the national politics of Pakistan itself.

Be that as it may, the break-up is irrevocable and it is in the interest of both countries that after the initial years of antipathy and bitterness, pragmatism has prevailed and they have come round to accepting the status quo. In fact, the bitterness of the past rapidly melts away when the regional balance of power requires them to join hands against India.

But no lessons seem to have been learnt in terms of domestic politics in Pakistan. Our unending political squabbles and failure to institute a stable democratic system testify to our failure to mature politically. Similarly, our refusal to address the human rights abuses of 1971 has not helped make our own society safe for our citizens where they can lead a life of dignity and honour. The promptness with which 51 civil society organizations in Pakistan responded to President Musharraf’s regrets in Dhaka is indicative of the sentiments of the people in respect of this issue. They apologized for “all the excesses and atrocities that were committed against civilians” which they described as “a violation of people’s human rights”.

It must be emphasized that the “regrets” President Musharraf expressed have profound implications for Pakistani society as well. It amounts to recognizing that state agencies are liable to be held answerable when they commit human rights violations.

In 1971 it was Bangladesh. Today it is Pakistan where the police continue to commit atrocities against the people — not on that scale but atrocities nevertheless.

The government never publicly recognizes this, let alone apologize for it. This is not a matter of semantics. The basic need is to start the process of healing and reconciliation within our own society too. You don’t have to set up a truth commission. But to cleanse the bitterness of the past, it is important that the truth about Bangladesh and our role in it is no longer hidden away or masked. The first steps have been taken. Now the time has come to let the truth be known to our children through the textbooks taught in schools and colleges.

The idea is not to denigrate the forces which were guilty of the crimes against humanity. The need is to teach our children the importance of tolerance, peace, justice and respect for human rights. Let them know that the treatment meted out to the people of then East Pakistan in 1971 was abhorrent to all civilized people.

There is also the need to teach these values to all members of our law enforcement agencies and armed forces who possess the capability, by virtue of their being armed, to use force against the civilian population. There is need to make them aware of the responsibility which goes with the power they enjoy. In fact, they should also be taught the relevant laws — national and international — so that they can be held accountable for violating them if they do.

We do not know if the academies and institutions which train the officers and jawans of our police and armed forces have courses which teach them about the Universal Declaration of Human Rights, the two human rights covenants (on civil and political rights, and economic, social and cultural rights), convention against torture, Convention on the Elimination of all kinds of Discrimination against Women, convention on the rights of the child (it doesn’t matter if Pakistan is not a signatory to all of them) and the international law of war (embodied in numerous international agreements such as the Hague Regulations, the Geneva Protocol, the Convention for the Prevention and Punishment of Genocide).

It is time those who become instrumental in committing human rights abuses are sensitized to these laws and conventions and taught their importance and warned of the consequences of violating these. They need to be told in clear terms that the dictum “all is fair in love and war” no longer holds true.

IN early April 1995 a court in Scotland banned broadcast of a television interview of the then British prime minister John Major on the eve of local elections in Scotland because it could influence local polls.

The 40-minute panorama interview was however screened in England and Wales where local elections were a month away.

The decision of the court on an appeal by the BBC was upheld five minutes before the programme was to be shown. Labour and liberal democrats had protested that it should not be shown until after the Scottish local elections.

It might be argued that attaining such standards of impartiality in electoral coverage by the media is hard in a fledgling democracy like ours. But our media should keep in mind that elections are to be held on October 10 and it should divide its time equitably to give fair coverage to all parties. It is not unfair to presume that a nation that adjusts its petroleum prices after two weeks is able to square with standards of impartiality of the media in the run-up and during the elections.

The press had virtually walked on the razor’s edge in the subcontinent in the erstwhile British rule. The British rulers resorted to demanding surety in cash from newspapers, suspending publications and arresting editors to subdue the press. In those trying days the Quaid-i-Azam Muhammad Ali jinnah always stood for the freedom of the press and fought legal battles in the courts for newspapers. He advised journalists to write according to their lights, write honestly and fearlessly.

Addressing a large representative gathering of Muslim journalists in Bombay in March 1947 he said ...the power of the press is really great, but you must remember that this power which you are wielding is a trust. Look upon it as a trust and remember that you are guiding honestly and sincerely the progress and welfare of your nation. At the same time I expect you to be completely fearless, if I go wrong or for that matter, the League goes wrong in any direction of its policy or programme, I want you to criticize it honestly as its friend...

After the birth of Pakistan as an independent country the press has had its share of problems. The ban on daily Nawa-i-Waqt in 1951, taking over of the PPL newspapers in 1959, formation of the National Press Trust in April 1964, issuance of Press and Publication Ordinance 1960 and the promulgation of provincial ordinances as the Press and Publications (West Pakistan) (amendment) 1963 are now part of our history. It may interest some readers that two central cabinet ministers were in the forefront in the taking over process of the PPL and the government action was hailed by some newspapers.

Such black press laws apart, the governments of the day, both elected and military, neither put in place rules of the game nor set healthy traditions in the conduct of the media policies.

It is a well-established tradition in democracies that think tanks of political parties or their media wizards work out media goals of their elected governments for implementation during their tenure. The job of the bureaucracy is to follow those policy guidelines.

In our country in the absence of the party spin doctors the bureaucrats either under coercion or of their own, took upon themselves both the formulation and the implementation of the media policies. This practice became more common and pronounced during the military governments.

The members of the bureaucracy whose job in a parliamentary system is to implement policies of the government of the day also started testing indulging in the policy making. It was during the rule of Field Marshal Ayub Khan (1958-69) that two bureaucrats shot to prominence by dint of their services for the master.

In policy matters our governments shift their goal posts according to convenience. They don’t give a free rein to public servants to air their views in the media against them. However no service rules are pressed into action to gag a public servant for making favourable comments in the press about the government. It will be fair to expect of the government to end this inconsistency running through its policy. It might appear to be an ill-thought out demand but serves the ends of justice.

Regarding the coming election, the government has made it clear time and again that it has no favourites and that it intends to hold free, impartial and transparent polls on October 10. While allowing equitable time to the political parties on the electronic media as part of their election campaign the election commission should carefully monitor the panel interviews of the party leaders. The electronic media should strike a balance in the projection of the leaders to avoid any political distortions and stay clear of any bias. This should also apply to the print media.

It may be mentioned that many a British newspapers criticised the BBC for making a bad editorial decision for trying to show interview of the Prime Minister so close to the local elections in Scotland inviting a court interference in the matter. The Daily Telegraph in its editorial entitled “A bad day for the BBC and a worse day for Labour reputations” described it an editorial error that allowed a judicial process to interfere in an editorial decision by political journalists at the BBC.

It would be in the fitness of things that all political parties running for political offices create their own policy think tanks or employ their own experts to frame media policies during their term in office. In fact all political parties should do their homework in hammering out policies including media goals before entering any political offices. The party manifestos should spell out the policies to be executed during the term in office.

To expect the civil servants to work out policies or to impart novelty to them amounts to injecting an element of politicization in the civil service. They should be enabled to stay clear of formulating policies for the government. Their job is only to faithfully and honestly implement the policies of the government.

IN every period of political turmoil, men must have confidence that superior judiciary, the guardian of the Constitution, will be fiercely independent and will resist all attempts to subvert the constitutional process.

Of course, “no constitution”, Dicey said long ago, “can be absolutely safe from revolution or from a coup d’etat”, and there is nothing the courts can do about it. Today Pakistan is once again under military rule and engulfed in political turmoil. The courts are allowed to function but subject to limitations imposed by the military regime.

Not surprisingly, the limits on judicial independence have influenced the force of judicial judgments. Inevitably, the stature of the courts has waned. The independence, integrity and impartiality of the judges are no longer beyond dispute in this country. Courts everywhere live in a delicate balance upholding and challenging the exercise of power, but courts in authoritarian states carry extra burdens.

In Pakistan, as in all federations, the Supreme Court plays a crucial role. It is the sole and unique tribunal of the nation. The peace, prosperity and the very existence of the federation rest continually in the hands of the Supreme Court judges. Without them, the Constitution would be a dead letter. An awesome responsibility rests on the shoulders of the Supreme Court. The apex court judges must therefore not only be good citizens and men of liberal education, sterling character and unimpeachable integrity; they must also understand the spirit of the age.

For almost five decades the superior judiciary has played an usually important role in determining the fate of Pakistan. It faced its first real test when the governor-general, Ghulam Muhammad, with the backing of the army, announced on October 24, 1954, that the constitutional machinery had broken down and declared a state of emergency. To provide the necessary background, it will be convenient at this point to recapitulate the sequence of events which led to the dismissal of the constituent assembly. It was on October 16, 1951, while addressing a Muslim League meeting at Company Bagh (since renamed Liaquat Bagh) in Rawalpindi, that Pakistan’s first prime minister fell victim to an assassin’s bullets.

Who really killed Liaquat? There are various theories but the people of Pakistan are farther away than ever from knowing the real motives behind the assassination. Whatever the final verdict on Liaquat’s assassination, it was a turning point in the history of Pakistan and unleashed power struggles and jockeying for positions between politicians, bureaucrats and generals. Khwaja Nazimuddin was saddled with the office of prime minister and replaced as governor-general by Ghulam Muhammad.

On April 17, 1953, Khwaja Nazimuddin was summoned along with his cabinet and ordered by the governor-general to resign. Nazimuddin refused and was dismissed. On September 20, 1954, just before Prime Minister Mohammad Ali (Bogra) went off on a tour of Britain and the United States, the Constituent Assembly passed a series of constitutional amendments aimed at whittling down the governor-general’s powers.

Ghulam Muhammad consulted Justice Munir, the Chief Justice of the Supreme Court, and summoned Mohammad Ali home. On October 23, when he arrived at the Karachi airport he was hustled into a car by a couple of army generals and taken straight to the governor-general’s house.

In what is further evidence of the army’s close involvement with the dismissal of the Constituent Assembly, before the Governor-General’s Proclamation was published, troops were moved in from their barracks a few miles outside Karachi to the Transit Camp in the town in readiness for disorders beyond the power of the police to control. After threatening Mohammad Ali (Bogra) with martial law and worse, Ghulam Muhammad dismissed the Constituent Assembly on October 24, 1954. The assembly hall was closed, its president, Maulvi Tamizuddin Khan, was ousted form his government-assigned house.

The dismissal was challenged by Tamizuddin Khan. The writ petition filed before the Sindh High Court questioning the governor-general’s authority to sack the Constituent Assembly was the first test of the independence of judiciary from the executive. On February 9, 1955, a full bench of the court upheld Tamizuddin’s appeal and ruled that the governor-general had no power to dissolve the Constituent Assembly. After consultation with Justice Munir, the chief justice of Pakistan, the governor-general heaved a sigh of relief. Justice Munir was ready to overrule the lower court’s decision.

On March 21, 1955, the court ruled, four to one, that the Sindh Chief Court had no jurisdiction to issue a writ in Tamizuddin’s favour. The federal court did not consider whether the governor-general had rightly dissolved the constituent assembly. It merely overruled the lower court’s decision on the ground that section 223(a) under which it heard the appeal did not have the governor-general’s assent, and was, therefore, no part of the law. In arguments before the federal court, the counsel for Tamizuddin Khan sought to show, by referring to historical records and debates on the Indian Independence Bill, that His Majesty’s government had accepted the position that the constituent assemblies of both India and Pakistan were ‘sovereign bodies’ not subject to any legal control.

The people of Pakistan discovered for the first time that their Constituent Assembly was not and had never been a fully sovereign body and that all its acts required the governor-general’s assent. And this in spite of the fact that for seven years, the rules of procedure of the Constituent Assembly — formulated while Mr. Jinnah was alive — stated that the governor-general’s assent was not necessary for a law to be placed on the statute book.

The superior judiciary faced its second test on October 7, 1958, when Ayub Khan, with Mirza’s connivance, staged a successful coup, abrogated the 1956 constitution and declared martial law. In the state vs Dosso case, a suit which examined the scope and functioning of the 1901 Frontier Crime Regulation, the Supreme Court ruled on the legality of the usurpation of power. Coining the doctrine of revolutionary legality as an acceptable mode for contesting a constitutional order, Munir ruled that a successful challenge to power conferred a badge of legality.

In the Asma Jilani case, the Supreme Court considered three related issues: the validity of the revolutionary legality doctrine established in the Dosso case; the doctrine’s applicability to the case of Ayub’s transfer of power to Yahya Khan; and the status of the legal frame-work. The court concluded that Yahya Khan had usurped power; that his action was not justified by the revolutionary legality doctrine and, consequently, his martial law regime was illegal. The judgment was, however, given when Yahya Khan was no longer in power.

When Zulfikar Ali Bhutto and 10 others were re-imprisoned by General Zia in September 1977, Begum Bhutto filed a petition in the Supreme Court challenging the validity and legality of the martial law regime. In that case, Pakistan made judicial history when a bench of nine judges of the Supreme Court validated the imposition of martial law and the dissolution of parliament by the chief of army staff, General Ziaul Haq, on the ground that it was warranted by the considerations of state necessity and public welfare.

It held that the CMLA was entitled to perform all such acts and promulgate all such legislative measures which fell within the scope of the law of necessily, including the power to amend the Constitution. It did so completely disregarding the accepted view that the court did not have the power or jurisdiction to circumvent settled constitutional procedures and allow a state functionary to tamper with the Constitution.

In March 1981, General Zia promulgated the Provisional Constitutional Order (PCO) “for consolidating.... the law(s) and for effectively meeting the threat to the integrity and sovereignty of Pakistan and because doubts have arisen...as regards the powers and jurisdiction of the superior courts”. As a consequence of this order, judicial powers were virtually snuffed out and the 1973 Constitution was rendered effectively infructious.

To add insult to injury, superior courts’ judges were required to take a fresh oath to uphold the PCO but not all judges were invited to do so.

It is unfortunate that from the country’s first decade, our judges tried to suit their constitutional ideals and legal language to the exigencies of current politics. It is our misfortune that the judiciary has often functioned at the behest of authority and has been used to further its interests against the citizens. Their judgments have often supported the government of the day. This was their chosen path through the 1950s; during the martial law periods of the 1960s and 1970s; under the mixed constitutional rule of Zulfikar Ali Bhutto and persists till today. When the history of our benighted times comes to be written, it will be noted that the superior judiciary failed the country in its hour of greatest need.

What would have happened had the Supreme Court decisions been different. It is idle to speculate but there is no doubt that the history of Pakistan would have been different. Looking back, keeping the courts open for business, not as a matter of right but as a privilege, under strict limitations imposed by military rulers, and tailoring judgments for expedience, or simple survival has done the country or the judiciary no good. On the contrary, it has done incalculable harm and undermined the confidence of the people in the independence of the courts.