Dear Sana Baloch,

Thank you so much for sending this essay and I hope you keep on sending your write-up in future too. I have been through your essay in which you attempted to raise some interesting points.

In this essay you have concluded that constitutional court is the final remedy of  all political upheaval which engulfed this failing state since its creation. Although, I agree what you pointed out in this essay that judiciary is failing to meet the required expectations and unable to play its role as an umpire which keeps on check the other two powerful organs of the state i.e, executive and legislature. However, the idea of constitutional checks and balance cannot apply in a system where the centers of power are not legislature, executive and judiciary but an army led executive who perceives itself the only Savior of this state and unwilling to take into account of other democratic forces, let alone the demands nationalists.

In support of your argument, you gave some figures, which highlight that how slow pace of justice is causing immense problems in judiciary and that further complicates its role as a true guardian of the Constitution.

As far as I understand, the question is not that the present supreme court lacks powers in dealing constitutional issues, but it lacks legitimacy and will to fulfill its role as an impartial organ. It is because of elitist political culture dominated by punjab and its army that never promoted democratic institutions, instead they always undermined and destroyed democratic forces and feared that democracy and rule of law promote equity and justice which can be counter productive to their own interests. In the foreseeable future, my best guess is that they never let democracy flourish and nor they will accept the identities of small nations because by acknowledging that small nations should command sovereign rights to their resources, means punjab would loose its lion share. Punjan perceives the whole autonomy and devolution business in zero-sum game, which means any gain made by small provinces will be seen as a lose for its army and people.

I have not done much reading on Pakistan 's constitutional affairs and my knowledge is limited on the constitutional role of the Supreme Court in connection with legislature and executive branch.

However, given the various political deadlocks created by two presidents who were backed by the army which resulted  terminating  elected Assemblies during the 1990s, and subsequently,(in Sherif's case) the court restored his government, this case highlights that the supreme court has the authority and power to play its role as an independent arbitrator, if it is willing to do so. Interestingly, in the case of Sherif's government, the power brokers never accepted court's decision and constantly undermined his government even after Court's verdict. In the end, he was forced to resign by the army and its poodle president after a bitter power struggle between the members of "troika" which represents that the true power resides in the this extra constitutional body especially in the post of the chief of army staff rather than the traditional organs of the state. This verdict along with historical precedence of  Tamizuddin case failed to put the judiciary on the right course. Because the high judicial appointments are political in nature which is why most of the time judiciary falls in the line of powerful body of the state and  tries to find accommodation thereby undermining the whole constitution.

Your argument suggests that by setting up such courts would ultimately  compel punjab  to accept rights of small nations and the their grievousness be resolved through constitutional legal process. Having said this, I presume you had in your mind the  U.S. styled powerful and strong supreme court which has the authority to water down any legislation which contradicts the essence of U.S. constitution. By suggesting this type of court, you must remember that liberal democracy like the United States, which has very strong constitutional traditions to uphold the true spirit of Montesquieu's theory of separation of power. Furthermore, the U.S. constitution plays a central role to the U.S. national identity. The constitution is worshiped as holy texts by the all three organs of the state as well as U.S citizens. In contrary, Pakistan's constitution has always been violated in the name of doctrinal necessity by the successive military and even civilian regimes. Let's not forget that Gen. Zia's remarks in which he said ' Pakistan's Constitution is few pages of document which can be ripped and binned at any time.'

The supreme court's verdicts often reflect the fact that who the chief justice is and whom he was appointed. The constitution is not priority in reaching to a verdict but the political circumstances and pressure from above is taken seriously this is why most of time their decisions clouded with politics rather than justice.

In the case of Germany, you correctly mentioned in terms cooperative federalism, but you overlooked the strong consensual nature of such federalism. The German federalism is not natural phenomenon of German polity but a product of allied powers particularly the United States which played a key role in installing a decentralized and fragmented political structure in the post war west Germany , thus ensuring that no dictator would be able to wield absolute power in the future.

Here you ignored the homogeneous outlook of German society where social and ideological cleavages barely exist. The whole nation share same culture which underpins and  promotes German interests in both domestic and international arena. In German polity, the signs of uniformity and consensus are clear and visible. The best example you can get by looking the process of legislation and implementation. It is not merely the constitutional court which ensures the distribution of the resources between the federal government and Lander (territories or provinces). But the idea of 'one German nation' that generates consensus between center and Lander through two branches of the Reichstag', particularly in the upper house, Bundesrat, a forum of Lander government (the participation in Bundesrat is based on equal representation of ruling governors of Lander). This means that Lander are involved in high policy making process, in this way, Lander negotiate and discuss the policies before they are passed on to the lower house Bundestag. Once the policies are legislated, the Lander have no objection in implementation of such policies. I therefore see no reason that such issues are resolved in the constitutional court where the issue distribution of resources, equity and consensus already resolved during the political process through negotiations and bargaining between federal government and governors of Lander.

Let's assume that in future Germany would abolish its federal system and bring back the system of Wiemar Republic or highly centralized system like the Third Reich (though without Nazism and xenophobic nationalism), In this case, I don't think the state by adopting such system would collapse or face any threat of its existence, because it is the German national or ethnic identity which matters most for the Germans not the federal system. The artificial partition of Germany on ideological lines against their will, and later fall of Berlin Wall and reunification proved that nationalism and German identity much stronger than an ideology which was imposed by the Soviet Union.

Unlike the United States most of the European states' identity is rooted in their history and common heritage, though they often preach for civic identity (which is fundamental to EU project to shun nationalism) rather than ethnic one, they still feel proud being German, Poles, French and Lithuanian. One example is the official German immigration policy statement which says that ' Germany is not a nation immigrants'. Furthermore, the Germaness rules in every aspect of state policy. You can analyze Germany 's immigration policy and you would see how the state policy gives preferences towards ethnic Germans who have been living in eastern European countries for decades and now want to return.  They have right to emigrate any time back to their natural homeland and the state offers hosts  of facilities to reintegrate them in German society. In contrast, the other ethnic groups are not entitled for such privileges. It was the Germaness which compelled the west Germans to bear the hefty cost of reunification of of both Germanies. The best I can summarize Germany 's federal system with Katzenstein linkage, in which he concluded that the present Germany is a 'decentralized state with centralized society. ' 

So given above analysis of German system, the idea of constitutional court which you prescribed here as the permanent solution of this artificial state, in my view is flawed. Pakistan 's problems are much deeper and wider in every respect compare to even other developing countries of Asia and  Africa . As most of the third world states' security concerns arise not from external threats but internal ones and pakistan is no exception.  The military perceives that it can alone guard the 'national interest' of the country. To interpret the imperatives of its national interest, you will reach on a conclusion that the interests are synonymous to one ethnic group's interests, that is people of Punjab.

Pakistani elites have never sought to resolve the question of state identity. The state lacks a common identity, the only identity and common value this unnatural state has had since its independence was Islam, which remained the bedrock of this state until 9/11, but recently the military not only abandoned it because of outside pressure but also violently attacked the Islamic forces in the name of "moderation" and "enlightenment". This strategic u-turn may benefit the punjab and its army on short-term bases but in the long run the state foundation will be questioned by ethnic/national groups within the state and that will further weaken the justification of the state.

Your idea of establishing a federal constitutional court may work in a true federal republic where the fundamental question relating to national and ethnic identity are resolved.  But in a state where one ethnic group has dominated on all centers of power since its emergence and is unwilling devolve power to provinces, instead violently resists to maintain its hegemony, such ideas like the one you proposed, seem to me a pipe dream by a nationalist. I presume the recent politico-legal developments in pakistan , in which the judiciary triumphed over executive-military branch  in a legal battle that may have influenced your thoughts by assuming that this failing state can be put back on the right path because judiciary successfully defended its autonomy and status as an independent arbitrator against highly powerful president/executive. In my view this euphoria would soon vanish because both army and the judiciary largely dominated by the same punjabi establishment that can go any length to protect their interests.

As i mentioned above that because of U.S. heat on army, the establishment willing to wither state ideology (islam) by portraying itself as a secular-pragmatic force to the west that pakistan can be modern democracy without islam, is basically digging its own grave.

The second most crucial development which is taking place in pakistan is the erosion of state sovereignty. As you are aware the importance of sovereignty that it is the corner stone of an independent state in international law and also in power politics, in the case of pakistan , this status is drastically being undermined by the U.S. led NATO forces. First time in the history of NATO forces went to provide humanitarian relief in pakistan (earthquake in Kashmir ), this development can be seen in humanitarian context but there are some negative implications to the state sovereignty in terms of state failure to provide relief to disaster hit citizens. Later, the U.S. forces conducted a series of bombing in tribal areas of paksitan with or without pakistan 's approval, nevertheless, such strikes undermined the pakistani military confidence that it has no capability to protect its territories. Now the U.S. president publicly proclaimed that American fores could hit some targets within pakistani territories, if it is necessary.

In present political endeavor, your party leadership has appeared realigning itself to pakistani opposition alliance. A section of Baloch society including the Baloch diaspora is looking such moves suspiciously and assuming that your party has changed the direction. Given the military's heavy handed crack down on BNP's leadership, I as student of politics well understand the predicament your party is facing and I often tried to be critical on other nationalist parties including NP for not doing much to end this campaign against BNP.(see the following article).

http://www.balochvoice.com/Articles_Editorials_local_papers/Articles/English/2007/07-02-14_Baloch_leadership_at_a_strategic_cress_road_By_Belaar_Baloch.html

At the same time, I hope this repositioning is just a tactical move not a strategic change of direction as this is a long game and the only people will prevail those have strong resolve and will to fight until the objectives achieved, i.e,  an independent and sovereign Balochistan , nothing less than that. 

And I hope that you and your party leadership would not loose the sight on the ball. 

Thank You

Belaar