By Roedad Khan
It is our misfortune that from the country's first decade, our judges tried to match their constitutional ideals and legal language to the exigencies of current politics. The superior judiciary has often functioned at the behest of authority and has been used to further the interests of the rulers against the citizens. Their judgments have often supported the government of the day. This was their chosen path through the 1950s and during the martial law periods of the 1960s and 1970s. When the history of these benighted times comes to be written, it will be noted that the superior judiciary had failed the country in its hour of greatest need. Chief Justice Iftikhar Mohammad Chaudhry broke with past tradition and changed all that. The nexus between the generals and the superior judiciary has snapped. An era of the Supreme Court's deference to the Executive has given way to judicial independence. In the darkest hour in the history of our country, Fate had found the man who had the character, the will and determination to speak truth to the military dictator.
One of the lessons of history is that when people lose faith in their rulers, when rulers lose their credibility and integrity, and when hunger and anger come together, people sooner or later, come out on the roads, and demonstrate Lenin's maxim that in such situations, voting with citizen's feet is more effective than voting in elections. That is what happened on March 15, 2009. People everywhere in Pakistan took to the roads and set out on the historic long march to Islamabad. The world witnessed the "power of the powerless." March 15 was the answer that led those who have been told for so long by so many to be cynical and fearful and doubtful about what we can achieve, to put their hand on the arc of history and bend it once more toward the hope of a better day. Today, thanks to Chief Justice Iftikhar Chaudhry, the "black coats," the media and the civil society, hope is sweeping Pakistan.
The euphoria following the restoration of Chief Justice Iftikhar Chaudhry and other deposed judges soon gave way to the sobriety of the "morning after." Today disillusion is fast setting in. People are getting impatient and are asking questions. The poor, the disadvantaged and the voiceless believe the reborn Supreme Court is on their side and expect redress of their grievances not from the Parliament, not from the Presidency, not from the prime minister, but from an unelected and unaccountable Supreme Court!
What they don't realise is that the power of the Supreme Court is limited. The Presidency and the rubberstamp Parliament are not in harmony with the spirit of the times. Mr Zardari has lost the "mandate of heaven" and is leading this country to a perilous place. Prime Minister Yousuf Raza Gilani is a mere figurehead and exercises only delegated authority. The president, the prime minster and the Supreme Court are not on the same wavelength at a time when a revolutionary change, both political and economic, is not only needed but would appear to be inevitable.
The Supreme Court is under the Constitution but "the Constitution is what the judges say it is." This gives the Supreme Court awesome power but that power is limited by the doctrine of the separation of power enshrined in the Constitution. The court has the power to decide what the law is, but it cannot make law: that power vests in the legislature. It can invalidate any law. It can strike down any law as being void or unconstitutional, but it cannot legislate. It can mete out justice but it has to be justice in accordance with law. Not otherwise.
On Sept 29, 2005, John Roberts was sworn in as chief justice of the US Supreme Court. At one point in the confirmation hearings he was asked, "Are you going to be on the side of the little guy?" Roberts replied: "if the Constitution says that the little guy should win, the little guy is going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy is going to win, because my obligation is to the Constitution."
It would, therefore, be naïve to depend on the Supreme Court alone to defend the rights of poor people, women, minorities, workers and peasants, and dissenters of all kinds. These rights only come alive when citizens organise, protest, demonstrate, strike, boycott, rebel, and violate the law in order to uphold justice.
The American Constitution gave no rights to working people: no right to work less than 12 hours a day, no right to a living wage, no right to save working conditions. No right to treatment by a doctor when in need. No right to a place to live. The Supreme Court was helpless. Workers had to organise, go on strike, and defy the law, the courts, and the police to create a great movement to win an eight-hour workday, and cause such commotion that Congress was forced to pass a minimum-wage law, social security, and unemployment insurance.
Women's right to abortion did not depend on the Supreme Court decision in Roe vs Wade. It was won before that decision by grassroots agitation that forced states to recognise the right. The rights of working people, women, and black people have not depended on decisions of the courts. Like the other branches of the political system, the courts have recognised these rights only after citizens have engaged in direct action powerful enough to win these rights for themselves.
Our culture – our history, the media, the educational system – try to crowd out of our political consciousness everything except who will be elected MNA or MPA, as if these were the most important decisions we make. They are not. They deflect us from the most important job citizens have, which is to energise democracy by organising, protesting, sharing of information, and engaging in acts of civil disobedience that shake up the system.
No Supreme Court can stop the war in FATA or abolish poverty or educated unemployment or redistribute the wealth of this country or establish free medical care for every citizen or provide the roti, kapra, makaan promised by Prime Minister Zulfikar Ali Bhutto long ago. These revolutionary changes depend on the actions of an aroused citizenry. A bloodless revolution, but a mighty revolution – that is what we need today.
Much water has gone down the Indus since March 9, 2007. Today the good news is that General Musharraf has been hounded out of office and thrown into the dustbin of history. The bad news is that Mr Asif Ali Zardari, his "democratic" successor, seems to have entered into a Faustian bargain with the Americans to pursue their agenda, with disastrous consequences for the country. What can the Supreme Court do? That is the question. God protect us all.
The writer is a former federal secretary. Email: roedad@comsats.net.pk, www.roedadkhan.com