Open Letter to the Chief Justice of Pakistan

By Qaisar Sultan

There is a dilemma faced by the nation regarding the Supreme Court’s dubious inability to contain an irreparable damage done to the country by corrupt, evil, inept politicians who have become the legislators in Pakistan, an insult to the term and its concept. There seems to be stretched out long debates, intentional delaying tactics, cute excuses, confusions, rumors about some kind of payoff to some judges by the politicians and threadbare legal arguments and waste of money of the tax payer. During the Musharraf regime, there were genuine fears of all kinds. When general Musharraf ignored the Supreme Court, the question was asked: Who could make him to surrender to the decision of the Supreme Court; and what could happen if he refused to listen to the Supreme Court’s decisions? The question is: What the Supreme Court can do to force the democratic and supposedly a constitutional government to abide by the decisions of the highest court in the country?
Judges could make the decisions but to enforce them against the powerful military president and now the crook politicians, and the president is based on a culture that corrupts itself every time something right has to be done. Well, the military was on Musharraf’s side and nobody could enforce the laws without the help of that institution with implicit unconstitutional powers conferred upon that institution. Besides breaking the constitution, the military generals and the military institution cross the threshold of the very concept of a non-constitutional government that has no limits of power. It is not only the military institution but also the democratically elected governments that have crossed the threshold, such as in the case of Nawaz Sharif pushing out the Chief Justice from the courthouse.  The handpicked judges and legislators gave general Musharraf the constitutional power that he used against the courts. The nation lived through uncertainty of a constitutional document without a genuine and enforceable authenticity throughout its brief history. Right from the time of Ghulam Mohammad to Ayub Khan to Zia to Musharraf, the judges were the helping hands to make unconstitutionality a norm that has been repeated with impunity. Now an impression has been evolved that the righteous and brave judges have taken the seat of justice. It seems to most of us that the Supreme Court has allowed well deserved ridicule to itself by dwelling between hesitancy and wavering; strong words and weak actions. In country like Guatemala, almost a banana republic, the constitutional court has removed the attorney general, Conrado Reyes. Though he was not charged to have connections in the underworld, the decision was made on the premise that “illegal groups could harm the constitutional process”.
The apprehension regarding the place of legislature in Pakistan to make laws is equating to a medical opinion from a paramedic for surgery of a dying patient. First, the credentials of the majority of legislatures in Pakistani assembly are not more than affront to an institution making laws and finding justice. They are not in any way normative source of laws and aspiration model of legislatures. The idea of crafty politics of jurisprudence has been infused with deal-making, horse-trading, exploiting the court system and most possibly corrupting the judges to make wrong right. Most of us have become more cynical in recent years about disreputable legislators as well as Supreme Court adjudication in politically oriented cases, specially dealing with the military rulers. As far as the legislators are concerned they are basically unabashed and insolent to the dignity of legislative process to say the least. And it is not the matter of legislature debating what is good for the people, but rather the will of the party leader so that the sovereignty of the legislative body does not amount to more than elective dictator. Let me spell it out; the members of legislative body in Pakistan are mostly ignorant and have no clue about the government, laws, economy, environment, history or any thing that matters to the people of the country- But the political power gives them the right of making laws. It takes years of law practice and study of law to become a judge. The civil government should only be allowed if it can serve the well-being of the civil society; and if it hurts and damage the civil society and the interests of the whole community at large, than that civil government that represents the majority should be overthrown to resist the majority tyranny. The courts should limit the legislative power of the civil government when they exercise their legislative proclivity to arbitrariness to the legislation that would serve their desires to make changes for their own interests. They can levy taxes, build roads, take loans, provide education and do what they think fit for national interests and progress, but they cannot be allowed to play Russian roulette with the laws of the land.  The spirit of democracy does not allow the violation of the trust reposed in the civil government and may be changed by relocating the legislative power. We should ask ourselves this question: Do the elected legislatures truly represent the “will of the people” by protecting themselves from the grip of the laws and undermining the democracy itself?  Any statue that the Supreme Court finds obstructing or slowing down the justice cannot be counter-majoritarian and open to judicial review. The statue passed on the basis of a particular remedy sought in a rush by President John Adam, was declared unconstitutional by Justice Marshall in the case of Madison vs. Marbury in 1803.  Justice Marshall established the judicial review that the Supreme Court has the right to review acts of congress; and in extension the actions of the president. That decision played an important role for correction of presidential and congressional desire and power to have their agenda put in place; and that was to take advantage of the majority vote that they had received. In that sense, turning down the act of congress in that case helped in bringing the true spirit of democracy to its full force.  
The judges wish to interpret the laws of the land keeping in mind the constitutionality; is the political morality of a judge comes in the way of his moral reading of the constitution? That the judges in the Supreme Court should wear the “veil of ignorance” (meaning they should be totally above bias) as described by Rawl; and if they do, they would always come with a valid normative proposition. One reasonable thing to do is to dissolve the assemblies and put intelligent, bright and enlightened people to run the civil government for at least six years, keeping the military and politicians out of politics for a long time to come.  For the first time, I would dare to write that the time for a bloodless revolution is at hand.
It is the right of the people, who are voiceless in Pakistan, to alter or abolish the government; in this situation the Supreme Courts should take the bull by the horns and get rid of these swindlers. The question: who shall be the judge whether the prince (Zardari) or legislative acts are contrary to the interest of the people? – John Locke. Finally, the dark image of human nature of Hobbes sounds more appealing than ever- “no arts, no letters; and which is the worst of all, continual fear, and danger of violent death; and the life of man, solitary, poor, nasty, brutish and short”- Like Hobbes was talking about the lives of the majority of unfortunate people of Pakistan.
qaisarsultan@live.com