The writer is a lawyer based in Islamabad.
The adrenalin rush makes the rollercoaster ride worth it. But those of us who scare easily have this lurking through: what if this thing unravels. When an entire country with weak structures (and a severe power crisis) decides to get on a rollercoaster and not get off, the cries that you hear are not necessarily caused by thrill. Sure one can put a positive spin on things: a convicted prime minister has been ousted by the stroke of a pen; the rule of law has prevailed; that the PPP has accepted the verdict is a sign of political maturity; the political process is continuing even if creakingly. Democracy might be at work here, but looks like its wheels might come off anytime. Isn’t it time for all power players to exercise restraint?
There is no grand narrative that can explain Pakistan’s power play today. We are told that the Supreme Court has always been an appendage of the executive, and in case of a divide between its civilian and military components, a stooge of the khakis. Is it attacking the ruling PPP regime on behest of the establishment? But then it is also doggedly pursuing the missing persons’ case (that caused it much grief back in 2007) or (less-doggedly) the Asghar Khan case. And then you find no Zulfi Bhutto heading the PPP government. Hasn’t this PPP regime dolled out extensions to the army and ISI chiefs and handed over security and foreign policymaking completely to the khakis? And notwithstanding its inglorious past, haven’t anti-khaki slogans been emanating largely from within PML-N? So is the PPP vs establishment narrative still as valid?
Are the khakis back in business with their old tricks; puppetry and palace intrigues etc.? They fuelled the hypocritical Kerry-Lugar debate and since then have largely driven Pakistan’s US policy. Our US ambassador got too ambitious and we witnessed the curious memo affair with the army and ISI chiefs swearing affidavits before the SC and the khaki defense secretary being fired by a civilian government. And despite all the melodrama nothing came out of it. There might be people going missing and dead bodies showing up, but despite this we have also been experiencing the most probing and critical debate about the role of the army and its intelligences that has ever taken place. Might some khakis have their savior instincts intact and the desire to save us from ourselves? Of course, but can they realistically assume and assert total control today?
Pakistan has changed. Its problems have grown. Social safety nets have shrunk. Everyone is feeling the pinch from the poorest to the upper middle class. There is a genuine sense of urgency to stem the rot. Business as usual is just not sustainable. But khakis aren’t the only saviors any longer. With an assertive judiciary and a vocal media, new power centers have emerged, with their own savior instincts. But notwithstanding our talk of reform and our understanding of its need, we all have a chequered past and are firmly rooted in realism. The generals know when to react and when to lie low. The judges know when to bellow and when to exercise restraint. The media knows which stories to kill and what angles to push. And the politicos and the bureaucrats have long mastered the art of swimming with the tide.
The confusion is partly due to the absence of a big tide that everyone can swim with. Each one of the power players stands discredited and compromised in one way or another. The talk shows replaced the soap operas half a decade back. And now it seems that they have turned into soap operas themselves. The SC emerged as the knight with a shining armor on its restoration in 2009. But three years hence the overall system of justice remains as corrupt and dysfunctional as it was prior to March 2007. Is the honeymoon over? Remember there was wide support for politicos when democracy was restored in 2008 with people willing to give them the benefit of the doubt. They refused to change their rotten ways and everyone started digging out skeletons from their closets. Is something similar happening to the judiciary?
The across the board reaction to Yousuf Raza Gilani’s disqualification was unanimous: good riddance. Those who argue that the speaker’s ruling should have been allowed to stand are wrong. The text of the Constitution didn’t allow the speaker the kind of discretion she assumed. The spirit of the Constitution doesn’t envisage the speaker either to sit in judgment over an SC judgment or act in a partisan manner. Those who believe that the Supreme Court has usurped the right of the people to vote out a prime minister are also wrong. Neither rule of law nor democracy requires that political accountability supplant legal accountability. If you assume for a moment that the court is not a puppet of the military, the perceived conflict between these forms of accountability vanishes.
While one anxiously awaits the detailed reasoning, the SC decision ordering the Election Commission to de-notify Gilani as a member of parliament is disconcerting for two other reasons.
One, it seems to render redundant Articles 63(2) and 63(3) of the Constitution in relation Article 63(1)(g). In the event that the process prescribed in Articles 63(2) and (3), and the respective roles of the speaker and the EC, were meant to be irrelevant for purposes of Article 63(1)(g) why did the language of the Constitution not state so? Could the SC not have simply interpreted the scope of authority of the speaker and the EC under Article 63(2) and (3) where a court has already ruled on the question that triggers a member’s disqualification as in Gilani’s case?
The SC could have clarified the limited role of the speaker, held that the reference would be deemed to have been sent to the EC as 30-days had passed since the conviction, and further stated that the EC also has no authority to sit in judgment over a SC ruling. The outcome would have been the same. Except that it would have been produced a few days later, it would be in line with cannons of constitutional interpretation and wouldn’t have embroiled the SC in the political thicket.
And two, the three-member bench of the SC seems to have overruled the understanding of the meaning of Articles 63(2) and (3) of the seven-member bench that convicted Gilani. Had the seven-member bench found that Gilani stood disqualified under Article 63(1)(g) the moment it found him guilty of contempt and there were no further procedural steps remaining to be taken by the speaker or the EC, why would it not say so in its ruling? Wouldn’t the short order have barred Gilani from exercising executive authority from April 26 as he had none vested in him any longer?
Would the meticulous ruling authored by Justice Nasir-ul-Mulk not inform the rest of Pakistan that Gilani was no more a member of parliament and prime minister and issue instructions to the EC of the nature that the three-member bench has now issued? Once the three-member bench reached the conclusion that Articles 63(2) and (3) were redundant in case of disqualification under Article 63(1)(g), should a larger (at least nine-member) bench not have been formed?
There might be no grand conspiracies here. But the do-good savior instinct of the SC, reinforced by its presumption that it is a ‘peoples’ court’ endowed with a historic opportunity to inject morality into the polity, is dragging the court into the political thicket. The need for rule of law and an independent judiciary can never be overstated. But the SC must tread carefully. While controversy might be a necessary corollary of politics, it doesn’t belong within the halls of justice.