Tuesday March 21, 2023

Guaranteed justice

October 03, 2020

Nations are led by thinkers, intellectuals, philosophers and idealist leaders. It is a pity that nowadays one hardly finds any noticeable intellectual and philosophical contributions being made anywhere in the public domain that may give a sense of direction to the fast-deteriorating moral standards and decaying social values in our society.

Education, wisdom, merit and competence are commodities which have little market in Pakistan. Drain of talent is rampant. Those who can afford insist that their kids settle in foreign lands. Deceit has replaced honesty; greed has taken over contentment and truth has been buried under heaps of lies. Trickery, flattery and kinsmanship and many other social evils that both scripture and books of history termed as the ultimate causes of the fall of many great nations have become pandemic.

Moral and social practices evolved over centuries by social thinkers, leaders and good men have been superseded by compulsive poor habits which are a recipe for a collective suicide. The daily staple is talk shows, over dozed with less than sensible political discussions that consume the nation’s prime and family time. People go to bed disgusted with circuitous maneuverings, shallow arguments and ridiculous feats displayed in favour of a morally bankrupt elite and leadership that provides a ladder to the incompetent who sit in high public offices rewarded for their flattery.

The youth, over-indulged in gadgets, games and fun, are hardly worried about their future. They seem to have been intellectually, morally and socially enslaved. The social gulf is deepening. Class differences and sectarian hatred are on the rise and are bound to undermine and ultimately destroy social harmony and peace if not stopped. Force is hardly a tool for social and political cohesion. In this backdrop, liberties hardly mean anything to a nation in slumber.

The bombshell of foreign debts may sink the ship any moment. In this critical moment of our national life, only brilliant ideas and a fearless leadership can steer the nation out of this impending crisis. This can only happen if the blessings of liberty are enjoyed by the people -- liberty of thought, conscience, expression, press and action. Fear kills ideas and hopes.

The constitution contains a great charter of rights enforceable through courts that guarantee these liberties. It is incredible that, despite a comprehensive chapter of rights inscribed in the constitution, it is generally believed that these rights are only parchment rights as put by the late Antonia Scalia. The former US Supreme Court Judge said that not the bill of rights but the civil government, that includes an independent judiciary, is the ultimate security of our rights.

In the context of Pakistan, the most basic document, the Objectives Resolution, which many liberals object to for bringing religion in politics, assured independence of the judiciary. The founding fathers understood that the dream of an independent state and society and aspirations promised in that basic document could be realized only with an independent judiciary that was also the ultimate interpreter of the constitution. All three constitutions entrusted the judiciary with the enforcement of fundamental rights.

Independent analysts, Paula Newberg whose seminal work ‘Judging the State’, Hamid Khan’s ‘Constitutional and Political History of Pakistan’ and two more recent works, ‘Judicialization of politics in Pakistan’ by Waris Husain and Leon Neudorf’s ‘Dynamics of Judicial Independence’, a case study of Malaysia and Pakistan, all indict the judiciary of Pakistan in failing to protect liberties. The judiciary of Pakistan, from the Maulvi Tamizuddin case ( 1955) if not earlier, has accepted the position that preservation of the state was more important than rights and the constitution, and that became a permanent recognition of the ‘state of exception’ as propounded by the Italian jurist Giorgio Agamben and to which former a chief justice referred to in his opinion in the Rawalpindi Bar Association case (2015).

The independence of the judiciary has been guaranteed by the constitution. The people of Pakistan also protected this independence in 2007-2009 during the lawyers’ movement. After the 18th Amendment, the judiciary got the power to appoint judges of the superior courts. However, intellectual soundness, moral courage and insurmountable will and obedience to the constitution by the judges are the ultimate guarantees of liberties.

Pakistan’s dilemma, since its creation, has been that it was forced to fight for its survival on all fronts. Its valiant armed forces, despite limited resources, protected its ideological and geographical boundaries. It is now blessed with a nuclear deterrent that keeps a belligerent enemy at bay; India, despite its pretensions, has not accepted Pakistan. The love and affection shown by the people of Pakistan for their brave soldiers and officers during the 1965, 1971 and 1999 wars and in recent times is enviable.

National security and freedoms can go side by side for both are provided by the same constitution. In the face of imminent danger after the APS incident, the provisions of Article 245 were interpreted by the Supreme Court in the Rawalpindi Bar Association case that provided enough room to ensure national security without undermining the constitution. The Supreme Court rose to the occasion and provided a way out in the face of an internal threat.

Parliament, that is the ultimate power under the constitution, did not shirk from its duties and all political parties supported the national resolve against terror. The security of the state is paramount but like many other nations that fought wars and faced existential threats, whenever compromised liberties, they were seen as weak states. William H Rehnquist’s classic, ‘All the Laws but One, Civil Liberties in War Time’ stands out as a classic narration of the suspension of the writ of habeas corpus during civil war. Lincoln’s critics, however, never forgave him although he saved the Union.

The writer is an advocate of the Supreme Court and former additional attorney general for Pakistan.