Love Letter From Hell

Any democracy is as strong or as weak as its judicial system. Without judicial independence, the Constitution is a fragile document that can be violated at will. Alexander Hamilton, an eminent lawyer and the most influential of the U.S. founding fathers said, “The independence of judges once destroyed, the Constitution is gone; it is a dead letter.”

A weak or compromised judicial system spawns a ruthless master who is a ruler with absolute discretion. Some of history’s most berated figures had unbridled power. Adolf Hitler blamed the Communists for the Reichstag (Nazi parliament) fire. When the judges failed to convict them, a furious Hitler invoked the Reichstag Fire Decree. He also set up a parallel judicial system called the Sondergerichte, or the Nazi special courts.

Otto Thierack, a staunch Nazi and Hitler’s Reich Minister of Justice issued a series of what are known as “Letters to all Judges.” In his first letter, Thierack set official guidelines for handing out sentences, including the death penalty, for anyone convicted as a public enemy. This was regardless of the severity of the accusation.

Hitler warned the judges: “I expect the German legal profession to understand that the nation is not here for them, but they are here for the nation. I shall intervene now and remove from office those judges who evidently do not understand the demand of the hour”. Judges were invoked as soldiers. Those who succumbed to the immense pressure played a crucial role in expanding and strengthening the power of the Nazi regime.

Turkey’s first democratically elected prime minister, Adnan Menderes, was very popular. Deposed in a coup in 1960, he was arrested along with President Celal Bayar, Foreign Minister Fatih Rustu Zorlu, and Finance Minister Hasan Polatkan on trumped-up charges in 17 cases. These included violating the Constitution and embezzling state funds.

Imprisoned in Yassiada, an island prison on the Marmara Sea, all four were sentenced to death. Only President Bayar, at 80 years old, was spared; the rest were hanged. Menderes is revered in Türkiye. His grave and that of Fatin Zorlu and Hasan Polatkan were moved to the New Topkapı Cemetery. President Bayar passed away at 104 and is recognized as the Father of the Turkish Republic. Yassiada came to symbolize the sorrows that nurtured Turkish democracy. It is now known as Democracy and Freedom Island.

Only recently, the Supreme Court, which has legalized military rulers in the past and even allowed them the luxury of amending the Constitution, judged the Zulfikar Ali Bhutto trial as unfair. This “innocuous” word of our national parlance, our bane, ensured Bhutto’s tragic and unjustifiable tryst with the gallows.

For centuries, judicial oaths have called for a judge’s conduct to be bereft of fear. In reality, judges are individuals with friends and families. How can they mentally insulate themselves if they or their loved ones feel threatened? The letter written by the IHC justices seeking justice allegedly cites specific instances of threats and coercion.

It is crucial that a full bench of the Supreme Court delves into this matter. As the Pakistan Bar Council demands, a commission comprising sitting SC judges should thoroughly and transparently investigate it. The IHCBA has also filed a petition requesting a thorough investigation of the allegations. The recent spate of toxic letters received at the offices of the IHC and SC judges, including the CJP himself, might well be the act of an agent provocateur. This, in itself, has to have a feeding ground to have the desired sinister effect.

Before his retirement, former army chief Gen Qamar Bajwa said in a televised speech that the army “is subjected to criticism from time to time. I believe the major reason has been the military’s interference in politics for the past 70 years, which is unconstitutional.” This was an admission that Pakistan has been under quasi- or full-blown military rule for the past seven decades.

For centuries, judicial oaths have called for a judge’s conduct to be bereft of fear. In reality, judges are individuals with friends and families. How can they mentally insulate themselves if they or their loved ones feel threatened?

This travesty has only been possible because of the consistent and willful ceding of space by all our political stalwarts. Always soliciting the military’s help as an easy conduit to power, they have also bestowed upon it the status of what the Romans called Magistratus Extraordinarius—an extraordinary magistrate. This, not the parliament, has become the default position for our “democrats” to send maydays to sort out their limitless political shenanigans.

The fallout has practically smothered the establishment of a delivering and stable democratic system. This has been because the voting populace has figured nowhere in this transactional alliance. It is imperative that the military actively follows its stated policy of disengagement from politics. This shall strengthen the people’s ability to weed out the non-delivering elements from the corridors of power.
Procopius, a Byzantine historian, notes in his ‘Secret History’ that those who suffer grievously at the hands of someone expect that they will be avenged by law. If their hope of redress fades away, they are turned to utter despair. It is akin to a forsaken child because a citizen views the state as its parent and guardian.

Due process is a binding and fundamental principle of the Constitution. Arbitrary revolving door detentions are cruel and an affront to the rule of law. The highest courts have held that law enforcement’s function is the prevention of crime and the apprehension of criminals. It does not include the manufacture of crime.

No political scientist, let alone a physicist, could have described our governance cycles better than this Einstein line: “Our politics is a pendulum whose swings between anarchy and tyranny are fuelled by perpetually rejuvenated illusions.” No power center has ever refrained from fostering the do not(s) in Pakistan; all deny the same. Mark Anthony’s famous lament rings in the ear: “So are they all, all honorable men.”