One starts with the question is the state a neutral institution? If that be so then man by his very spontaneous behaviour is a community-forming individual and is indicative of his social mannerisms. By implication then the reference to the Almighty is indicative of gravitation towards God (since man and his nature is God given). The development of the communal system puts a spanner in the works. Does society developing a community take its origins from deficiency? Does the necessity of authority flow from the sins that a society can create?
Is there mutual sociability protection, comfort and development to mention a few of the aspects that require careful assessment. Are we a group of fallible and fumbling human beings in authority? It seems so at the moment. In a democracy this authority arises from the free will that is built around intangibles in a society. The preservation of harmony in a society necessarily means that the state as a neutral institution must take its course in various ways that a society has to organise itself for the welfare and the principles that a society has to inculcate. Authority stems from the very individual's requirements for protection. Since we are supposed to be in a democracy, the free will of the people is involved. The difficult part in a democratic government is that the authority has not only to be respected but also loved. That in a Third World context seems to be difficult and more in the realm of mental development. This will take years and years to develop. This concept of loving (for want of a better word) authority would mean that all members of a society have equal rights as to values that have been ingrained either by consensus or by decree or by the authority. The use of force is minimised by the actions that are taken. Since the common good is an attribute that the Almighty has also stated as the basis for the functioning of a society, therefore there has to be some kind of development of principles that impinge on all and not on the few. If authority is not loved (hence the rejuvenation of a society after certain periods through the development of political elections) then it gives rise to a law and order situation. If the legitimacy is questioned at any stage prior to this period it means that fear, hate and cheating have become the order of the day.
So when should the state use coercive powers if at all? It has many mechanisms for this. The laws that are in vogue through the parliament system is one. Social customs adherence is another and the use of moral rights is crucial. Love is not a weakness but a manner of showing excessive affection. The state's coercive power then is used for the weak to balance out any weakness that may be there in the system and the organisation of society in which the powerful have a greater stake and the weak have none. Given this condition the societal change of power has to be orderly. How that order is imposed deals with the question of legitimacy. Is it then correct to assume that legitimacy is lost once the state forgets its onerous duties? The more complex the situation the more circumspect societal options have to be. If the laws are esoteric then the implementation of those laws is difficult and will be counterproductive. The laws have to be continuously changed to meet the changed circumstances of society for no society can be governed by rules and laws that are obsolete. If the law-makers have failed in their duties to enact laws that work on the basis of the common good, then who is supposed to work on these issues and deliver the society at large, not some individuals but a well-addressed system of checks and balances. These checks and balances allow legislative acts to be reviewed by the judiciary and to strike them down if they are repugnant to the constitution. It is wrong to assume that all acts of the Parliament would be loved by society. The current system of tariff increases is one area, the tax imposition is another. Those that are essential no matter how regressive but that run the federation will never be struck down. It is the laws that are not in keeping with the harmony and well-being of a society. In any case, the rule of the thumb is that the checks allow the Supreme Court to bring back order from the brink. Though the common good may be temporarily lost sight of, but the judiciary has the authority and the harmonic sense to restore some kind of order in what may be executive or political distortion.
The order of the day is that the judiciary has been subjected to political violation and the orders have not been fully implemented or if implemented, these were not implemented in letter and spirit. The spirit of implementation is based on deductive and inductive logic and my point is that these are missing in what has become a charred society. Should then authority be used for the abuse of the state. Abuse here is not meant in the Punjabi sense but in the perversion of the social systems. What authority can have these absolute rights to do this even if he or she is an elected person? The power and authority of the elected representative is a trust and that trust has to be evidenced by the people. If this tenet is not followed then the fate is ordained in the next elections. A swollen chest is not as good as the humble hunch. There is no need to be double faced on effort.
So when will the enactment of the elected representative be loved? This will when the postulates of the authority are such as to instill fairness and justice above all else. This is the severest test of authority and has implications for the political system and the rule of law. No institution can survive the social system by itself and it must and needless to say be based not on loyalty but on reason and respect. Authority must conspire to end all conspiracies that work for the betterment of the polity. Difficult but doable. The common end must perforce be the benefit of the maximum number of persons. There is a need to reassess the social welfare state. The Benazir Income Support Programme is but a flash in the pan. It must be removed from the stigma of political benefits and be available to the needy wherever they may be. This could have been done differently and better but that would require imagination and effort well beyond the current status of the politics available in this country. This goes for all the schemes that seek to multiply votes for the next elections. All laws that are not in the realm of decency in as much as they do not allow the nationals of Pakistan to benefit, have to be struck down by the Supreme Court. The country was not meant for the segmentation that has been going on for far too long. The PPP or N League or even the Tehrik must not abuse the Pakistani for not being part of their realm and politics.
How then will the SC implement these decisions? It must have its own arms for implementation and such institutions as are developed be placed directly under the Supreme Court. If the government of the day is not consistent with the orders to be implemented then this is the way out for the Supreme Court. As social change comes to the country, there will be changes that will be required in the law and in fact I was privy to a thesis written by a Pakistani on this very subject for his LLM degree. It made out the case that in a fast-moving world, cultures change and therefore, the law has to be in pace with those cultures. Unfortunately, such is not the case.
Yet the essential aspect of law is coercive power to implement what it has ordered and to exact penalties for their violation. The micky out of institutions that are meant for justice is not allowed in any society and so can Pakistan be privy to something different? The jokers must pay a price for their 'marassipan'. The coercive aspect of law is also educative in as much as it acts as the pedagogy for further education of the masses so that they are aware of the consequences. Restrictions may be necessary for the greater good and for greater liberty.
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