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Theoretical-Stance

vs.
Practical Might

The recent victory of the judicature is being considered as a victory of


the democratic forces over dictatorial tendencies, which, time and again, have tried to put
off the country from the constitutional track. Well, it’s true but does it really mean that
from now on, there will be no more Martial laws? No PCO? No emergency? In theory, it
is the responsibility of the judiciary to protect the constitution, but one must ask that is it
practically even possible? The basic structural weakness of the judicature and the
practical executive might has to be understood, before we claim that the judiciary is now
free in its true sense.
Many have blamed the Judiciary for validating the past dictatorial
regimes. But the fact is that a mere verdict of the court is not enough to make the military
go back to the barracks. Let us ask our selves, would a mere verdict of Justice Munir be
enough for Ayub Khan and Iskander Mirza, to have them accepted their mistake,
apologize to the nation and to promise to play fair and be good boys? Certainly not!
One must realize that in theory, it might be possible but reality is far
from different. When U.S. President Andrew Jackson found himself opposed by Chief
Justice John Marshall, “Marshall has made his decision,” Jackson is reported to have
said, “now let him enforce it.” This very statement of the President tells the truth about
the structural weakness of the Judicature against the Executive.
The institution of the Judiciary is inherently weak as it is dependent on
the Executive to implement its own decision. If the judgment is according to the wishes
of the Executive, then implementation is carried out gladly. But if that’s not the case,
things can start to go from bad to worse. It is naive on our part to think that the judiciary
would come out victorious, just because they are the protector of the constitution and
hold a valid position on a legal issue.
The last judicial crisis (not being the first one in our history) was not the
only inter institutional conflict to have been reported. A similar uprising of the judges
was seen in Egypt against the Egyptian state authorities and the movement came to be
known as the Judicial-Intifada under the leadership of Hisham al-Bastawisy. But like
Marshall, Egyptian judges found them selves helpless against the practical might of the
Executive. Similarly, Italian Prime Minister Silvio Berlusconi has labeled Italy's judiciary
a "cancerous growth" because of all the corruption cases against him and his party.
In Pakistan, Judges have often, if not always have tried to avoid the
fight by acting as the cooling agent between the all three state institutions i.e. The
Legislature, Judiciary and the Executive. If we are to review our constitutional history, all
the precedents from Dosso-Case to the very recent verdict by Chief Justice Iftikhar
Chaudhry of the Supreme Court declaring Musharraf’s Nov. 3 Emergency illegal, are
more of a circumstantial result rather than a conclusive outcome of a struggle. The
question is still there that would the judges have been restored, if the legitimacy of the
Punjab Assembly would have not been called in question?
But every thing aside, the fact remains that a judge dared to say “No” for
the first time and took a theoretical stance against the practical might of the executive and
came out victorious. This not only raised the moral of the judges, but appears to have put
an end to the compromise, popularly known as the PCO, by taking a strong stance and an
ongoing struggle which continued for more than a year. Now, the only question which
remains to be answered: is it the end of the dictatorial era of Pakistan?
As said by Alfred E. Smith, “All the ills of democracy can be cured by
more democracy.”