When the honorable justices of the apex court have chosen not to speak through their judgments, it will not be improper to scrutinize their conduct. And the judges have chosen to speak, that too publically, not on constitutional matters but on matters concerning national security. It will only be appropriate to remind them that they, wittingly or unwittingly, have become a party to the unholy nexus out to defeat the armed forces in the war of perceptions. The armed forces, we must admit, have lost this war and despite their sacrifices, are being treated as enemy’s army. This is being done right at a point in time when they are fighting the longest battle to defend the country from external aggression being unleashed internally.
What the judges are supposed to do when they approach deciding cases that involve the constitutionality of measures taken by the executive and legislative branches of government to protect the national security? According to California Law Review, as a matter of first principle, logic suggests that judges addressing such cases should start with a healthy dose of deference to military and executive officials. This seems sensible for several reasons.
First, judges have relatively little experience with national security matters. Such cases arise infrequently, and judges are relative novices when it comes to assessing the possible implications of their decisions on national security. This cuts in favor of deference. Second, the stakes in such cases may be quite high. Unlike most legal disputes, in which erroneous judicial decisions have only modest consequences and are usually correctible, the potential consequences to the nation if a judge is wrong in a case involving the national security may be truly catastrophic. Hence, a certain measure of deference seems wise. Third, for institutional reasons, judges should be reluctant to second-guess the judgments of military and executive officials in such conflicts because if they err they may harm not only the national security but also the long-term credibility of the judiciary itself. Again, logic demands deference.
In the US, judges have traditionally followed this “logical” course when addressing conflicts between civil liberties and the national security. They have presumed-seemingly sensibly-that the actions of military and executive officials were constitutional whenever they acted in the name of national security. The three most dramatic twentieth century clashes between civil liberties and the national security illustrate this approach.
Balochistan is Pakistan’s most volatile war zone and the enemies have the audacity to exploit Pakistan’s activist judicial system to their advantage. The court is well-meaning and would settle for nothing short of rule of law but under the media pressure has focused its attention on the armed forces. Once the media and the apex court have been won over by anti-state elements, rest of their job is just piece of cake. The media or a section of it may be on the payroll of anti-Pakistan elements but the court should be kept out of the mess. It should be made to understand that Pakistan is at war with its enemies in this part of the country and the court’s diatribe through conducting itself as a War Crimes Tribunal should help no one but the enemies.
Totally unconcerned about the ground realities, when a judge declares that gone are the days when tanks and missiles guaranteed national security, it could be disregarded as naivety. True that happy populace alone guarantees national security but in order to defend your motherland you need tanks and missile and even nuclear arsenal. Such statements only divide the nation and have far-reaching consequences. Such statements from the holder of a respectable constitutional office create confusion. Judges are under oath to protect the constitution; soldiers are under oath to defend the motherland. You keep on protecting the constitution and let them do their job. Your statements can please your constituency; the media but it will destroy the fabric of national unity.
- Balochistan should be a no-go area for the apex court…. (passivevoices.wordpress.com)
- Concepts of national security and stability are changed, says CJ (dawn.com)
- You: No individual or institution alone can decide national interest: Kayani (nation.com.pk)