|Quaid-e-Azam\'s Historic Visit to Staff College Quetta|
Every time General Kayani, Chief of Army Staff, speaks, and he speaks in roundabout ways, not quite explicit but understood by all concerned, he creates confusion all around and makes thing worse for himself. As I read his incredible address at the GHQ, I could only shake my head in disbelief. Exposing seniors army officers to highly controversial political issues is bad enough but following it up with a statement to the press, at a time like this was, in my opinion, ill-advised, to say the least. A Grade 22 civilian Secretary would have been sacked within 24 hours.
General Kayani’s statement is widely interpreted as a pointed attack on the Supreme Court. Without directly referring to the court, General Kayani said: the country was passing through a “defining phase” and issued a veiled warning of “consequences if the state institutions did not work in harmony”. “No individual or institution has the monopoly to decide what is right or wrong in defining the ultimate national interest”, he said. “The fundamental principle” he said, that no one is guilty until proven should not be forgotten, a pointed reference to the judiciary. It is back handed support to the retired Generals who are facing criminal charges in an election-rigging case dating from the 1990s. General Kayani is obviously seeking to establish red lines for the Supreme Court.
Exactly 64 years ago Quaid-i-Azam Muhammad Ali Jinnah, Founder of Pakistan and Father of the Nation visited Staff College Quetta and, with uncanny prescience, warned senior officers against involvement in politics and the affairs of government. He expressed his alarm at the casual attitude of “one or two very high-ranking officers”, and warned the assembled officers that some of them were not aware of the implications of their oath to Pakistan and promptly read it out to them. And he added: “I should like you to study the constitution which is in force in Pakistan at present and understand its true constitutional and legal implications when you say that you will be faithful to the constitution of the Dominion\".
Earlier, on the day of Pakistan’s independence, August 14, 1947, Mr. Jinnah, who had just become Governor General, scolded one young army officer. The officer had complained that: “instead of giving us the opportunity to serve our country in positions where our natural talents and native genius could be used to the greatest advantage, important posts are being entrusted, as had been done in the past, to foreigners. British officers have been appointed to head the three fighting services, and a number of other foreigners are in key senior appointments. This was not our understanding of how Pakistan should be run”.
Mr. Jinnah, it appears, had a presentiment of sorts and was deliberate in his answer. He warned the officer concerned: “not to forget that the armed forces were the servants of the people and you do not make national policy; it is we, the civilians, who decide these issues and it is your duty to carry out these tasks with which you are entrusted”.
The Pakistan army is a people’s army, in the sense that it belongs to the people of Pakistan who take a jealous and proprietary interest in it. It is not so much an arm of the Executive branch as it is an arm of the people of Pakistan. It is the only shield we have against foreign aggression. Why politicize it? Why expose it to the rough and tumble of politics?
Isn’t it ironical that 64 years after Mr. Jinnah’s visit to the Staff College and the policy statement he made on the role of the army in the affairs of government, when a petitioner spoke of the Army’s respect for judiciary, the Chief Justice quipped: “Yes, we witnessed it yesterday (Monday November 5)”. The Chief Justice said that Supreme Court had final authority in all legal and constitutional matters. This authority, he said, is enshrined in the Constitution and is unassailable.
In Pakistan, as in all Federations, the Supreme Court plays a crucial role. It is the sole and unique tribunal of the nation. The peace, prosperity, and very existence of the Federation rest continually in the hands of the Supreme Court Judges. Without them, the constitution would be a dead letter; It is to them that the Executive appeals to resist the encroachment of the Parliament; the Parliament to defend itself against the assaults of the executive; the federal government to make the provinces obey it; the provinces to rebuff the exaggerated pretensions of the federal government, public interest against private interest etc. They decide whether you and I shall live or die. Their power is immense. But they are all – powerful only so long as the people and the government consent to obey the laws and implement the decisions of the court. They can do nothing if they scorn it.
Chief Justice Iftikhar Mohammad Choudhary faces an uphill task. An awesome responsibility rests on his shoulders. The survival of the Federation as a democratic, progressive state now depends on his Court. The judicial revolution triggered by him is irreversible. Let there be no doubt about it. Any attempt to undo it will be resisted. The people have planted an independent judiciary in the path of our turbulent democracy. No longer would the executive be a law unto itself. Today there are many now willing to spill their blood to defend their hard-earned independent judiciary. Try to destroy the independence of judiciary, and the moment is not far off when this beautiful country will be plunged into a civil war. Supreme Court should be the barrier that protects the citizens from the winds of evil and tyranny. If we allow it to be stymied or sabotaged by corrupt rulers or permit it to be desecrated or demeaned and it crumbles, who will be able to stand in the winds that follow?
Not many people know that a landmark judgment of an earlier Supreme Court, gives the rubber-stamp parliament the ultimate power to emasculate the basic elements or fundamental features of our Constitution. It would now be free, under the garb of amendment, to change a democratic government into a dictatorship or hereditary monarchy. It could do away with the Islamic provisions of the constitution and change the Federal Constitution of Pakistan into a unitary form. It could even subordinate the superior judiciary to the Executive and make the Supreme Court the Judicial arm of the government. In other words, it could mutilate the constitution and change it beyond all recognition. It is scary.
The Judges of the Supreme Court are bound by their oath of office to preserve, protect and defend the Constitution. The Constitution places that responsibility squarely on the shoulders of the Supreme Court which has the power, in fact the duty, to strike down any legislation enacted by the parliament which, in its view, is repugnant to the constitution. The Supreme Court is more than the usual law court. In its keeping lies the destiny of Pakistan. Its decrees mark the boundaries between the various branches of State. Upon its action, depends the proper functioning of the federation, infact its very survival.
The power to determine constitutionality of amendments made by the parliament is of the very essence of judicial duty. In the midst of civil strife and war, as Burke pointed out in his reflections on the French revolution, “laws are commanded to hold their tongue amongst arms. But in peace time law is supreme and its interpretation is the exclusive prerogative of the civil courts”. Now that “democracy” has been restored and Law is unfettered, and supreme once again, the court must exercise its power to restore the balance between the “One, the Few and the Many”.
It is now abundantly clear that the executive is determined to defy the apex court. Attempts are being made to subvert the people’s will and overturn the judicial revolution. It is the last desperate gamble of a corrupt fascist autocracy. Is there any remedy for this sorry state of things? None. Because a corrupt Presidency and a corrupt Executive are in league with a rubber-stamp parliament and have ganged up against the Supreme Court. Who is there to protect the Supreme Court? The true guardians of the Constitution and the Supreme Court are the people of Pakistan. People power alone can protect the Supreme Court from corrupt rulers and corrupt power-hungry Generals. Our rulers know that the street is all they have to fear. Confronting them has now become a patriotic duty. Neutrality is not an option. You are either with the Supreme Court or against it. It is as simple as that.