The Honourable Justice Jawwad S. Khwaja made a separate note on the Supreme Court detailed judgement in the National Assembly Speaker ruling case. He made a very interesting observation: he stressed that the constitution is supreme over all organs of the state, representing the will of the people. The constitution also explicitly states, in the preamble, that the will of the people should be used to establish a constitutional order. It also says in the third schedule, that the constitution embodies the will of the people. It is this fundamental principle that is the hallmark of our democratic dispensation.
I must state that I am not a lawyer or a legal expert so cannot comment on the technical and legal implications of the Supreme Court’s decision. However, there are a few questions I would like to raise.
The present constitution was approved by the parliament in 1973 whose members were not elected as a constitution making assembly when Pakistan comprised of two wings. Then how can it be asserted that the 1973 Constitution was made by the will of the majority?
Is it not the will of the people of Pakistan to get socioeconomic necessities and speedy justice? What solution does the present constitution provide when a country is facing problems of internal disorder, sectarian killings, religious extremism and terrorism? Can the state organs of judiciary, parliament and executive try to work jointly to solve these issues and represent the will of the people in reality rather than principle?
Which state organ actually represents the will of the people – the parliament or the judiciary? Which state organ has he power to amend the constitution? If the parliament can amend the constitution, then how are parliament and judiciary equal in protecting the will of the people? Is it not true that the present PPP-led government and president were not keen on restoring the current CJ and a few other high-up judges?
Is it not true that the Army Chief played a role in restoring the CJ in March 2009?
Is it not true that the present judges adopted judicial activism that mainly targeted the PPP led government and its key executives?
Is it not true that the SC judges have shown unanimity of views in the judgement against the executive and there have been no independent views of any judge on any case? Why has the judiciary been entertaining politically motivated petitions by the opposition parties? Do these parties represent the will of the majority of people?
Why does the judiciary exercise caution in the interest of political stability and follow the rules of democracy and wait another six months when the new government is ushered in after the elections so that the much required letter to the Swiss Authorities can be dispatched then?
Is there no independent national institution which can rightly assess the judges’ performance?
What about the accountability of those judges that have charges of corruption on their families?
Why does the judiciary not allow the parliament to debate on its performance and its expenses?
How do the people of Pakistan know the judiciary is in sync with the people’s will?
S T HUSSAIN
Lahore