I was thinking about this article by Nadir Hassan yesterday and I ended up posting this huge comment on the tribune site. I thought I might as well post it here. Nadir argues:
To support the constitutionality of the Supreme Court’s actions does not mean, to preempt a likely criticism, that I support the army’s campaign against the PPP. It is possible to be against the illegality of a military coup while finding nothing to object to in a Supreme Court finally asserting itself. Their aims might be the same but by staying within the confines of the law, the Supreme Court may end up strengthening the system in the long run.
I disagree. There is no question, at this point, of strengthening the system in the long term. What we are seeing is merely more of the same in which multiple sections of the elite are colluding with each other to cut another section of the elite down to size.
Basically what the author is arguing here is that the Supreme Court should have the authority to arbitrarily make a decision that affects another branch of government. Once it makes this decision, the other branches of government are obliged to abide by this decision or face prosecution for contempt of court.
Taken to its logical conclusion, this situation results in a crippled government in which the executive and legislature are in constant fear of being declared in contempt of court whereas there are absolutely no checks and balances on the ability of the Supreme Court to make whatever decision they like. No matter what they decide, defenders of the Court will argue that since they are the highest court in the land, they have the right to act as they are acting. Tomorrow, for example, the court could declare that the entire Constitution be re-written to be in line with the Objectives Resolution. Any government that refuses to enforce this will immediately be declared to be in contempt of court. Is this a situation that we are willing to accept? More importantly, is this a situation in which the system will be strengthened?
Anyway, this is only an issue because since we have a parallel government in the form of the Establishment, the Supreme Court feels no obligation to stay within the limits of its power. As Alexander Hamilton said of the US Supreme Court in Federalist no. 78, “it may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” Of course this is not an endorsement to the executive to disobey the Supreme Court – but in a state like the US in which the various arms of government aren’t constantly trying to expand their limits of power, it’s merely a statement of reality – the Supreme Court knows that it cannot force the executive to enforce a decision that the executive violently disagrees with, which is an incentive for the court to practice a degree of judicial restraint. However in Pakistan, there is a parallel government in the form of the establishment. The Court knows that in the case where the executive is unwilling to enforce its decision, it can appeal – or make common cause with – the parallel government and have its decision enforced by it. This bypassing of the executive to enforce its decision essentially disempowers the executive and leads to – as we see – a breakdown of the functioning of the state which is where we are right now.