To the Chief Justice, without prejudice

BY:Jamil Omar
Daily Times

The ultimate case against any government is its performance in office and its highest court is the elections. Let the people decide the fate of the PPP and its leadership

Iqbal Bali’s hunger strike in Islamabad was a milestone in the lawyers’ movement. When Chief Justice (CJ) Iftikhar Chaudhry invited Bali to personally thank him for his support, Bali characteristically replied: “You do not have to thank me. I did it for democracy and the rule of law, not for you.” Bali passed away soon afterwards, probably from complications resulting from his long hunger strike. Were he around, Bali would surely have raised his voice against the Supreme Court’s recent order in the NRO case. He may well have addressed the CJ directly in his typical fashion as follows:

My dear Chaudhry sahib, I am writing to record my great disappointment in you and your honourable brothers. When you were down and out the nation stood by you because you symbolised democracy and the rule of law. But ever since your restoration you have chosen to implement justice in a very slanted manner. You have consistently, some say deliberately, targeted a democratically elected civilian government while overlooking a host of other flagrant cases of political corruption. In this singular pursuit you have cast aside all restraint and resorted to extreme judicial activism.

The stated justification for your actions is “(to) uphold and maintain the dignity of the court and to salvage and restore the delicately poised constitutional balance in accord with the norms of constitutional democracy”. Sounds great, but I wonder by what stretch of judicial imagination your famous order to fix the price of sugar at Rs 46 per kg can be considered as upholding the dignity of the court or seen as an attempt to restore constitutional balance. Through hindsight, it now seems to be a deliberate interference in the work of the executive with the intention to undermine its authority and thereby wreck the constitutional balance. May I respectfully submit that the honour of our courts and the cause of justice in our land would have been better served had you implemented urgently needed judicial reforms in order to ensure cheap and quick justice, rid the courts of corruption and clear the cases backlog, and you should have ensured transparency, merit and objectivity in the appointment of judges and checked the growing hooliganism of the lawyers’ community.

It is interesting to hear you speak of constitutional democracy, for this is exactly where your elite brotherhood may ultimately cause most harm. Remember that famous Freudian slip that escaped from the mouth of one of your own brothers in open court: “We cannot allow parliament to declare Pakistan a secular state.” Mr Jinnah must have turned in his grave at this. If the recent order is anything to go by, it reads like a medieval Qazi’s fatwa, basing itself more on scriptures than sense. Its rambling, repetitive and tendentious text is full of unwarranted conclusions and unproven allegations. Prosecuting a democratically elected government on the basis of such an order would cause serious political turmoil anywhere; in today’s Pakistan it may well be a historic tragedy.

The Supreme Court order indicts the government for its general contemptuous attitude and two specific failures: NAB did not investigate in-depth the wrong appointments of Adnan Khawaja and Ahmad Riaz Sheikh or take action against Malik Mohammad Qayyum, and the federal government did not write to the Swiss authorities. Basing themselves merely on this your brothers have drawn a very broad conclusion: “Such an attitude, approach and conduct prima facie shows that the co-chairperson of the said political party, the prime minister and federal minister for law have allowed loyalty to a political party and its decisions to outweigh and outrun their loyalty to the state and their ‘inviolable obligation’ to obey the constitution and all its commands.”

Democracies are a far from perfect system and conflicts of interest between state institutions are not uncommon. Sometimes they arise on account of personalities and at other times on account of the law itself, as was vividly demonstrated in the state of Florida during the 2000 US elections. Mature nations resolve such conflicts through mutual accommodation and consensus; others sink into mutually destructive turf wars. Today, Pakistan seems to be headed for an unnecessary collision between the Supreme Court and parliament. Prima facie there is not much of a case for toppling an elected government but then in Pakistan given proper support from the ‘right’ quarters, our judiciary has hanged an elected prime minister, and hence there is ample room for concern.

Pakistan is faced with a foreboding scenario that can easily turn ugly. A few individual whims can easily transform the six options mentioned in the Supreme Court order into another non-negotiable ‘six points’. To avoid a tragedy resulting from our own naivety, let us heed the words of a local sage who recently wrote: “The people are familiar with the strong case against the military’s encroachment in the political domain; no less strong is the argument against the judiciary’s intervention in politics. What may be legally permissible is often politically wrong and laws are at best silent on the kind of give and take without which governance by consensus is not possible.”

Keeping I A Rehman’s above wise and timely counsel in mind, the judiciary and the government need to arrive at a consensus. A closer look at the six options suggests that an accommodation may be reached along the following lines:

Option one bases itself on religion and laws thrust upon the constitution by General Ziaul Haq to decree ex parte that the prime minister is not an honest person and therefore unfit to hold office. Similar allegations have also been levelled against the president and the law minister.

This is unnecessarily confrontational. As the court has chosen to make Allah a party to the dispute, may I humbly suggest that this option be left to the will of the Almighty.

Option two recommends initiating contempt of court proceedings against the prime minister, law minister and law secretary and possible disqualifications.

The government should submit and the court should pardon matters of contempt.

Option three recommends the appointment of a commission to implement court orders. The Swiss Court issue should be deferred while the president enjoys immunity. The remaining court orders to be implemented by the government.

Option four requires the president to request the court to decide on his immunity.

The president’s immunity in matters under review should be proclaimed by the court.

Option five requires the chairman NAB to be removed for misconduct; further investigations into wrongdoings of others involved need to be looked into.

Appoint a new consensus figure as NAB chairman, follow this by a Truth and Reconciliation exercise covering all related matters, especially those pertaining to improper appointments/promotions, etc.

Option six explores the possibility of showing judicial restraint and leaving the matter to the better judgement of the people or their representatives in parliament to appropriately deal with the delinquent.

Political delinquents are best dealt with politically. Let the people decide, hold early elections.

In conclusion, let me repeat that the ultimate case against any government is its performance in office and its highest court is the elections. Let the people decide the fate of the Pakistan People’s Party (PPP) and its leadership. Meanwhile, Mr Nawaz Sharif should fight his battles in the political arena and not resort to undemocratic ways to topple governments or keep a hold on the Senate and Imran Khan should desist from his favourite hobby of hawai (aerial)-firing.

The writer is co-President Awami Party.