The Passive Voices

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.

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• 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)