The road to martial laws
The Supreme Court’s (SC’s) Justice Dost Mohammad Khan delivered some interesting thoughts while addressing a ceremony in his honour by the Peshawar Bar Association on March 1, 2018. Justice Khan said that bringing political matters to the courts is paving the way for martial law. Political parties should resolve issues in parliament for the sake of a strong democratic system rather than involving the courts, he argued. He lamented the fact that our region and country have been turned into a laboratory where new experiments are unfolded every day. He went on to point out that separating the judiciary from the executive was not an easy task. He claimed that the judiciary has made a lot of sacrifices to acquire the capability of separation from the executive. He defined the judiciary’s responsibility as providing inexpensive and speedy justice (so far conspicuous by its absence). He argued that there was no flaw in the law. The flaws if any lay within us for attempting to use the system in wrong ways. He warned that attempts were being made to damage the 1973 Constitution but it was still in place. The dignity and prestige of the judiciary remains high in the eyes of the public when decisions are based on justice. Justice Khan refrained from elucidating what happens if the contrary (in public perception) takes place. Last but not least, Justice Khan claimed progress on the issue of missing persons and lamented that delays in the justice system could be mitigated if not eliminated if the lawyers’ community too fulfilled its responsibility and respected the institutions. While the claims of progress on the missing persons issue is unlikely to bring any satisfaction to the numerous families throughout the country that are continuing to run from pillar to post to recover their loved ones, his advice to the lawyers is well taken that they should challenge decisions in the higher courts rather than go on strike.
Justice Dost Mohammad Khan’s remarks go the heart of the current ongoing tussle between a proactive judiciary and the executive and legislature. The tendency for some years now for the judiciary to assume the mantle of saviour and attempt to correct all the wrongs in our state and society, no matter how well intentioned, has proved controversial, engendered questions about the separation of powers amongst the judiciary, executive and legislature, and inadvertently, if Justice Khan’s logic is accepted, is paving the way for a rolling up of the democratic system once again in favour of military dictatorship. If the past is any guide, no good has come from such interventions in our history. Military saviours may have been hailed as heroes when they took power through coups (in the manner classically spelt out in a poem by Kahlil Gibran), but in every case without exception, left behind more problems than they had set out to solve. One tragic outcome of a military regime was the loss of half the country. Of course politicians cannot be exonerated of their share of the blame. Justice Khan’s plea for politicians to resolve political issues in parliament stands in stark contrast with the practice of the PML-N government under former premier Nawaz Sharif. Parliament was largely ignored by him, hardly ever attended, and no real effort made to strengthen the constitutionally supreme institution, best poised to deal with political matters. While perusing the reports of the SC’s detailed judgement regarding disallowing Nawaz Sharif to be head of his party according to the Elections (Amendment) Act 2017, the court, according to legal critics, has strayed into the sphere of morality rather than confining itself to its proper remit of the law. Be that as it may, and this controversy is unlikely to die down any time soon, it is instructive to quote a passage on the role of the courts by US Chief Justice John Roberts Jr: “Courts are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.” Case closed.