Lec­tures ju­di­cial and mil­i­tary

The Pak Banker - - Front Page -

MY Lord Chief Jus­tice and Gen­er­alis­simo Kayani both swear by con­sti­tu­tion­al­ism and the rule of law. To hear them on the sub­ject it al­most seems as if these con­cepts were dis­cov­ered first in Pak­istan.

If con­sti­tu­tion­al­ism were to mean any­thing His Lord­ship would be more in­clined to the gift of brevity than he seems to be at present. To Lord Ba­con’s wise ad­mo­ni­tion he would pay greater heed: “And an Over-speak­ing Judge is no well­tuned cym­bal.”

If my words are not taken amiss, the essay from which this comes, Of Ju­di­ca­ture, should be af­fixed in stone at the en­trance of all the High Courts and the most au­gust Supreme Court, so much dis­tilled wis­dom in it.

“Judges ought to re­mem­ber,” says Lord Ba­con, “that their of­fice is To In­ter­pret Law, and not to Make Law or Give Law: else will it be like the author­ity claimed by the Church of Rome...” We are close to the Church of Rome in this re­gard, ju­di­cial pro­nounce­ments, and too many of them, sound­ing very much like pa­pal in­junc­tions.

He goes on to say, “Let judges also re­mem­ber that Solomon’s Throne was sup­ported by Lions on both sides; let them be lions, but yet Lions un­der the Throne; be­ing cir­cum­spect that they do not check or op­pose any Points of Soveraign­tie.” In to­day’s con­text, un­der the throne would mean un­der the arch of con­sti­tu­tional author­ity, as de­fined in the Con­sti­tu­tion as op­posed to the idea of sovereignty prop­a­gated by the SC. So many of us took part, in vary­ing de­gree, in the justly-cel­e­brated strug­gle for the restora­tion of the Jus­tice Chaudhry-led Supreme Court (SC). But it is a moot point whether we strug­gled for this desi ver­sion of the Church of Rome.

The In­ter-ser­vices press re­lease, con­vey­ing the ag­i­tated thoughts of the army com­mand, seems to be aimed at ju­di­cial over-reach: “...try­ing to as­sume more than one’s due role will set us back.” It is hardly a reve­la­tion that in sev­eral in­stances – NLC, Royal Palm, the judge­ment in the As­ghar Khan case – mil­i­tary feath­ers have been ruf­fled. This press re­lease also comes dressed in the colours of the rule of law. But Gen Kayani surely knows that such a state­ment in a more es­tab­lished democ­racy and he would have re­ceived his march­ing or­ders by now. Pub­lic lec­tures on con­sti­tu­tional pro­pri­ety by ser­vice chiefs: not quite what the Con­sti­tu­tion vi­su­alises.

But we hardly need re­mind­ing this is Pak­istan where a dif­fer­ent cul­ture of power pre­vails, where the army has been in the driv­ing seat for long, where the army is still the last voice in the fram­ing of na­tional se­cu­rity is­sues, and where gen­er­als will continue to speak out in this man­ner un­til democ­racy comes of age and Pak­istan’s po­lit­i­cal class grows up and is in a po­si­tion to talk to the mil­i­tary class on equal terms – equal in terms of un­der­stand­ing and in­tel­lect. The mil­i­tary’s ver­sion of the na­tional in­ter­est will be sup­planted, or fine-tuned, only if any doc­trine pro­pounded by the po­lit­i­cal class is more log­i­cal and con­vinc­ing. Too many politi­cians, sadly, are given to rant­ing when it comes to se­cu­rity is­sues. And they are taken for a ride by the army com­mand fairly eas­ily.

Twice Gen Pasha ap­peared be­fore par­lia­ment in se­cret ses­sion. On both oc­ca­sions a pro­fes­sional vi­o­lin­ist could not have played par­lia­ment more skil­fully than he did. On the sec­ond oc­ca­sion at least – this af­ter the Bin Laden out­ing – he should have been on the mat, sweat­ing. In­stead he read out a pa­tri­otic psalm and had most of par­lia­ment, mer­ci­fully not all, singing with him. He should con­sider a ca­reer in pol­i­tics. He is a per­sua­sive speaker.

To re­turn to the is­sue at hand: as if our other prob­lems weren’t enough we now face a prob­lem of phi­los­o­phy. In lay­ing down the ex­tent of the SC’s pow­ers My Lord Chief Jus­tice sounds very much like the na­tion’s moral ar­biter: “There seems to be no co­he­sive ef­forts in terms of a na­tional frame­work wherein the mega is­sues have been tack­led in an ap­pro­pri­ate man­ner.” This in his lat­est re­marks to se­nior bu­reau­crats-in-train­ing. And the con­clu­sion he draws is that heavy re­spon­si­bil­ity there­fore lies upon the SC judges as guardians and pro­tec­tors of the Con­sti­tu­tion.

Who, pray, has en­vi­sioned this role for the SC? Is it for his lord­ship to speak of mega is­sues and weak­nesses in the na­tional frame­work? Re­call Ba­con, the court’s duty is to in­ter­pret laws, not make them. As for guard­ing the Con­sti­tu­tion, enough if the higher ju­di­ciary, now and for the fu­ture, does not come to the aid of mil­i­tary takeovers by giv­ing them con­sti­tu­tional sanc­tion. To go no fur­ther back than the re­cent past, the SC val­i­dated Mushar­raf’s coup in near-record time. On that his­toric bench sat, among oth­ers, My Lord Chaudhry.

To be sure, times are dif­fer­ent and we have moved on. At least that is the il­lu­sion we nur­ture. Still, a lit­tle hu­mil­ity would not be out of or­der. The past be­ing the past and ev­ery in­sti­tu­tion, with­out ex­cep­tion, hav­ing earned its rich share of in­famy and blame, it is only proper that stones if they must be cast should be cast lightly.

Gen­er­als have done the coun­try much harm. No need to go over this fa­mil­iar ground. But then their col­lab­o­ra­tors were both judges and politi­cians. And if the higher ju­di­ciary seeks to de­rive moral author­ity from the restora­tion move­ment, the army can claim re­demp­tion from some­thing more sa­cred, the blood of its mar­tyrs.

No army likes be­ing ridiculed even if sit­ting in peace­time bar­racks. But this is an army stretched out from the eastern bor­der up to the heights of Si­achen and fight­ing con­stantly, one op­er­a­tion scarcely ceas­ing be­fore the need for an­other arises, on the western marches. An army at war and the skele­tons of the past be­ing made to emerge from their gloomy cup­boards in a se­lec­tive man­ner.

Ac­count­abil­ity? Of course but con­vinc­ing only if evenly spread out. If gen­er­als should be called to ac­count for past sins this is a healthy de­vel­op­ment. But then what about judges and politi­cians and rob­ber barons and the car­tels of ce­ment and su­gar and all the other ac­tiv­i­ties which make the Is­lamic Repub­lic, God-gifted as we never tire of as­sert­ing, a car­pet­bag­ger’s paradise? South Africa went through tougher times than we can imag­ine. But af­ter the cur­tains fell on the black night of apartheid the lead­ers of the free­dom move­ment, Man­dela in the fore­front, sought to heal the wounds of the past by preach­ing tol­er­ance and rec­on­cil­i­a­tion. But look at us: give any of us a bit of power and who can match our arm­chair hero­ism?

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