This article argues that present circumstances require that the Supreme Court of Pakistan must fulfill its legal and constitutional duty to protect not only the provisions but the spirit of the Constitution also. If it does not do so and does not pave the way for the rule of the right, we will be going to have another 60 or 160 years’ rule of the might in Pakistan.

by Dr. Khalil Ahmad

I appreciate the genius and efforts of eminent jurist, Justice (retd) Fakhruddin G. Ebrahim, to bring the country out of its present quagmire, and dedicate this piece to him. It is men of opinion like him that we need instead of the ilk of our political misleaders.

Those who are hopeless never live – because they had already relegated themselves to a life not worth living. Before March 9, it was the same with us, the ordinary people of Pakistan. We had no hope that we would be rid of the rule of the might. But what happened between March 9 and July 20 this year sprouted a hope in us. In a whirlwind of uncertainties hovering over us, this hope rests with the Supreme Court (SC), the highest seat to dispense justice in Pakistan. Why single out the SC? There are other institutions that are under the same burden of responsibility. No, but it is fate or history that at times picks out some individual or group or institution to play the role of an arbiter. This role is such that not only does it decide the making or unmaking of a nation, but judges upon its destiny also. It is at this moment that a stroke proves to be a stroke of luck or misfortune. It is what is described as a ‘live or die’ phenomenon.

First, is not the whole nation or all of the people who are responsible for what happened or is happening or will be happening in Pakistan? Yes, we are surely all responsible for the sorriest state we have caved in. It includes all the generations from the first one that found things in its hands down to us whom those things have been relayed to in an ever-decaying state.

But is not it the safest passage one can have recourse to transport oneself out of the mess? We are always happy with the premise: everyone shares the responsibility. Does it not mean that no one is responsible? That is our greatest tragedy. Be not existential or existentialist to utter the statement that if someone is murdered somewhere, everyone is responsible for that. On an existential plane, it is profoundly meaningful. Has it any meanings for a society where there are no people of the ilk of Jean Paul Sartre? Obvious enough, someone murdered a person and he must be fixed with the responsibility of murdering that person. Both tradition and law maintain that.

Second, if not all of the people, then it must be the political parties that are responsible for the disastrous state Pakistan is in. Ah, that is a truism. They are the culprits. Whatever negativity is there, it can be attributed to the conduct of the political parties in Pakistan without an iota of doubt. But what can we do to them? Can we banish them, imprison them, or hang them? No, there is no such law. If there are any offences committed by their leaders, they are to be tried by the courts. The tradition of trial by people has vanished almost altogether. That is for good reasons! Another tradition has taken its place, and that is for good reasons also. It is trial by people when they elect their representatives. But it is so only if the elections are free and fair enough to let the true representatives of the people to win and if there is any rule of law.

Third, is not it then our military that is responsible for the total breakdown of Pakistani society? The current public opinion is congruent with this view. Be that as it may, who will bell the cat? Apart from that, the document that can hold them responsible for transgression of their lawful role is just a document. It is merely a book. It has no soul or life qualities with which it could enforce itself. In point of fact, it is not the military itself that can hold its own self responsible, it must be some other authority that can perform that function.

It is none other than the judiciary that can judge upon the military. It is this institution that can fix responsibility; that can try culprits and punish them. So it is the judiciary, the ultimate court of appeal, the SC of Pakistan that is fully equipped with such ‘arm and ammunition’ that it can take the transgressors to task. This ‘arm and ammunition’ is the Constitution.

The Constitution, among other things, is a frame of reference also. It helps us see who is who, what are his or its responsibilities, what are his or its limitations, and by doing what he or it becomes liable to what. It is the book that entrusts various institutions and persons with the task of ensuring and securing the fundamental rights of the people, the sole purpose of establishing a government. It is a book that helps fix responsibility. It is not just social or moral responsibility as in the case of whole nation or all of the people; or not just political responsibility as in the case of political parties. It is legal and constitutional responsibilities that the Constitution provides us with to fix, and the judiciary performs that function.

Thus the institution of the SC that comprises its honourable judges is the custodian of the Constitution. Not only that the Constitution brings the SC and its judges into existence, but it demands that it is to be interpreted and protected by them. It is their raison d’etre. No other institution has been made responsible in this manner. Thus the foremost constitutional (and legal also) responsibility lies with the judges of the superior courts not only by virtue of their constitutional oath, but also as the highest arbiters in our world. It must be noted here that interpreting the Constitution without protecting its spirit is misleading and fatal. It kills the Constitution. If protection of the Constitution does not bear this meaning, it bears no meaning at all.

But did the judges of the higher courts come up to this constitutional and legal demand? The answer is ‘no’. In its negatives, this ‘no’ has been far bigger and destructive than the positives of the Chief Justices’ ‘no’ of March 9. One caused a death wish to permeate in the people of Pakistan and the other inspired a strong urge for life in them. The greatest damage it did to Pakistani society is by validating the principle of ‘might is right’. It destroyed the value system of Pakistan.

Hence, fourth and last, it is the higher courts and their judges with whom the greatest responsibility lies. But unfortunately, they were unable to protect the Constitution. They interpreted it in such manner that was tantamount to killing its spirit. This anti-constitutional role of the custodian of the Constitution notwithstanding, the fate has it that it is from the judiciary also that the greatest advocacy of the ‘right is might’ came forth. It is to this call that civil society and people at large answered and gathered around. They flooded out from their doom gloom lives to see and strengthen that man who for them embodied hope. He sparked inside them a hope for the rule of the right, for the rule of the law, for the rule of the Constitution, which is the only means of ensuring them their fundamental inalienable rights. This hope is lurking around in desperation. The judgment of September 28 once again frightened the people of Pakistan to death. They are dreading the imminent rule of might for another 60 or 160 years. Their hope suffered a heart attack and is on its deathbed.

I write these lines not to influence or exhort the court, but because in the words of Ayn Rand, I do not want to give up Pakistan to those whom I despise for their anti-people values. The petitions seeking validation of the rule of right subjudice in the SC are crucial for the health of this hope. We should remain forewarned that the forthcoming judgment or the petitions will enliven this hope or strangle it to death!

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Dr. Khalil Ahmad is associated with Alternate Solutions Institute, Pakistan’s first free market think-tank

This article appeared in The Post on October 11, 2007.