Our courts want to be invisible. They want firewalls to ward off intruders. No clearance of judges by security agencies. No eavesdropping, no surveillance. Be that as it may, the courts consider themselves the sole, omniscient, omnipotent guardians of the Constitution.
This view is not novel. Socrates (if not a fictitious character in the Republic) proposed a guardian class to protect that society, and the custodes (watchmen). One of Socrates’ interlocutors (Glaucon) in the Republic says, “it would be absurd that a guardian should need a guard.” Leonid Hurwicz stressed this point while accepting the Nobel Prize for Economics in 2007.
So far so good. But, there is a Latin quip quis custodiet ipsos custodes?, who will guard the guardians (judges)? Or who will watch the watchmen?
Some quarters, for instance the Parliament and the Executive, have qualms about judicial guardianship. They, also, harbour the notion of being the self-styled guardians to hold power accountable. Call them co-guardians in Constitutional Separation of Powers.
All “guardians” are convinced that they know their divine duties better than their misguided denigrators. The elected representative tells that it is they who are to exercise authority under divine sovereignty. Even elected authorities under the secular Constitutions profess that they know they are there to serve the people. And only they know the limits circumscribing their powers under the constitutions.
Besides the legislature, judiciary, and the executive, there are other Non institutions that claim “guardianship”. They point out “Power corrupts and absolute power tends to corrupt absolutely” (Acton). Such institutions include civil service, police, banking institutions, and public sector undertakings.
So many claimants. But it is actually the people themselves who hold ‘power’ to account. Again we are in a cul-de-sac. The so-called ‘people’ are an amorphous lot without a legal identity like an institution, except as ‘voter’ during elections, usually not fair.
The courts should avoid futile debates at public expense. They should equalize their perks and privileges (pay, housing, plots, etc) with other servants of the state. A common man also has some subsistence needs.
To conclude, the judges are no angels. If angels, they too are bald (Saadt Hasan Manto, Ganjey Farishtey) So they look, in the light of audio/video leaks, media reports and their judgments. The judges justified Martial Laws on one pretext or another. They did not take a suo moto notice when a uniformed praetorian was constitutionally recognised. It was only after the departure of a praetorian that the apex court smelt “foul” breath and the “smeared” pen: of a dictator. The courts were generous in allowing a dictatorship (a grund norm) under “necessity” Kelsen’s Pure Theory of Law. And Lo! An elected prime minister was kicked out for “receivables’/aqama. Some others, for other reasons. Judgments should not have a political tinge.
As noted by Roedad Khan in his book Pakistan: A Dream Gone Sour, Justice Muhammad Munir, shortly before pronouncing his infamous verdict on the notorious Dosso case, said: “… when politics enters the portals of justice, democracy, its cherished inmate, walks out by the backdoor”.
French jurist Jean Bodin tells what happens when there are too many guardians at daggers drawn. Before ‘Highest power over citizens and subjects is unrestrained by law [constitution]’.
History teems with luminaries who harboured supra-constitutional hallucinations. While addressing a press conference in Tehran, Gen Zia-ul-Haq said, “What is the Constitution? It is a booklet with 10 or 12 pages. I can tear them up and say that from tomorrow we shall live under a different system”.
Asghar Khan in We have Learnt Nothing from History: Pakistan, Politics and Military Power, described thoughts of a former prime minister about ‘democracy’ in Pakistan. “Zulfikar Ali Bhutto … told me that he was sure that if I joined hands with him … we can then rule together. The people are stupid and I know how to fool them. I will have the danda (stick) in my hand and no one will be able to remove us for 20 years.”Julius Caesar and Napoleon Bonaparte also harboured extra-constitutional thoughts. Napoleon told Moreau de Lyonne, “The constitution, what is it but a heap of ruins? Has it not been successively the sport of every party? Has not every kind of tyranny been committed in its name since the day of its establishment?”
During his self-crowning in 1804, Napoleon said: “What is the throne, a bit of wood gilded and covered with velvet? I am the state. I alone am here, the representative of the people.”
Too, elected representatives (power) are under the delusion that they are superior to all unelected institutions (judiciary). The representatives should exercise their authority under Allah’s Sovereignty within the bounds of our constitution.
True,’ the courts are guards over the brute power and authority of government. In so doing the courts are ‘quite untouchable by the legislature or the executive in the performance of its duty’ (Harilal Kania, India’s first chief justice). But, the courts alone cannot be the guardsman of the constitution.
The current debate over “guardianship” is a reverberation of classical poet Juvenal’s view. He points out that the guardians, too, in relation to an imprisoned woman, are not incorruptible (Satire 6, 346–348):
I hear always the admonishment of my friends:”Bolt her in, constrain her!” But who will guard the guardians? The wife plans ahead and begins with them. But who can watch the watchmen? They keep quiet about the girl’s secrets and get her as their payment; everyone hushes it up.
The courts should avoid futile debates at public expense. They should equalize their perks and privileges (pay, housing, plots, etc) with other servants of the state. A common man also has some subsistence needs.
