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November 9, 2012

Lectures judicial and military

Opinion

November 9, 2012

Islamabad diary
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 well-tuned 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?
This is not to deny the great good this SC has done. My Lord Chaudhry has gone where others have feared to tread. The ultimate test of wisdom, however, is to know the limits of one’s power and authority. To hear pronouncements from the bench the impression often is not of the judiciary speaking but of an overbearing executive issuing directives and implementing policy.
The dictatorship of generals we have known. The dictatorship of mediocrity is an enduring reminder of our national inadequacies. Is it now our fate to suffer the dictatorship of morality?
“Remember, Caesar, thou art mortal,” a slave would whisper into his ear as he heard the acclamations of the multitude. No true Romans here... agreed. Only the tin-pot variety, figures of straw and cardboard, but a whiff of power and good sense goes out of the window, making the office of slave, whispering that timeless admonition, a constant necessity in the hallowed confines of the Islamic Republic.
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