The writer is editor The News, Islamabad.
It doesn’t get any more nerve-wracking. Almost as if acting in unison, the Lahore High Court and the Supreme Court served ultimatums to the country’s president and prime minister – both belonging to the same ruling party, both facing the consequences of committing contempt of court by refusing to implement court verdicts. The superior judiciary itself stands accused of being an ‘overarching activist court’ hell bent on gobbling up prime ministers like a judicial pacman.
The Justice Umar Ata Bandial-led Lahore High Court wants President Zardari to choose between party co-chairmanship and the country’s presidency. One office grants him political impunity, the other legal immunity. Considering the Swiss blues, among other factors, if it comes down to making an either or choice Zardari’s possible preference is a no brainer. But the judgment already has its fair share of critics.
It is being argued that the earlier decision of the LHC bench – which included then justice Bandyal – in this regard was a non-binding decision and therefore did not invoke action under a contempt petition moved by a petitioner. But the latest decision by the justice turned Chief Justice Bandial has obviously treated its earlier suggestive order as a binding verdict and the president has now been asked to make his choice by Sept 5.
Fast forward to the SC. A petition has compelled the court into taking cognizance and it has asked the new prime minister Raja Pervaiz Ashraf to inform it by July 12 whether he intend to follow the court verdict on the Swiss letter, or his sacked predecessor’s example. In this instance also, the ruling party’s response is a no brainer. Raja, like Gilani, will walk the defiance talk.
So where do we go next? Of late, legal and constitutional petitions have become an integrated part of political maneuvers and whether they like it or not, the courts cannot escape this snare. They are bound to decide on petitions, either way. But the apex court also cannot remain oblivious to the severe economic and political ramifications of a second prime minister being sent packing within weeks of the first one, the legal justifications notwithstanding. There are no two arguments that sending a second PM home would be a perfectly legitimate decision forced upon the judiciary by the government’s own intransigence and deliberate flouting of the law. But does that in any manner mitigate the de-stabilising consequences? Not really. It’s a catch-22 dilemma for the Supreme Court.
The ruling party and its allies warn of the heavens falling if the court were to sack another of their prime ministers whereas the court is stuck with the legal dogma of applying a different standard to two prime ministers in an identical case. If the SC goes easy on Raja Pervaiz Ashraf in the interest of political stability, that would violate the sacred tenant of all being equal before the law. Why should Gillani have suffered a different fate than Raja, people will then ask. And the argument will emerge that following the theory of appeasement in the so-called national interest is tantamount to exercising the ‘doctrine of necessity’ of a different kind. How then does the court show restraint without compromising on law?
If it implements law, as it is ordained to, it fears creating an environment of extreme political instability. If it does not, then it sets a bad precedent of the land’s elite law makers being allowed to trample the law of the land and the top court under their feet. Damned if they do, damned if they don’t. So, is there a middle ground? Can the NRO verdict be implemented without the court scalping another rental prime minister? Could it avoid walking into the neatly laid trap of a ruling regime wanting to turn the entire affair into one of confrontation between the judiciary and the parliament, rather than what it truly is: a desperate elected junta pulling all strings to protect its top leader in an alleged corruption case?
In this unenviable scenario of really-no-real-options, at best the court has two undesirable choices: It can allow the case to drag on while it tends to other pressing affairs and quietly take criticism for its deliberate eschewing of a tough decision. The other solution lies in the original verdict of the seven-member SC bench, which had presented the SC with a six-item menu of options.
One option was that the larger bench constitute a special judicial commission, which bypassing the reluctant executive, could directly write to the Swiss judicial authorities to treat Justice Qayyum’s correspondence in the matter as having been withdrawn and reaffirming Pakistan’s continued legal interest in the matter. Nothing stops the SC from exercising this option except for the serious charge of applying double standards and its traditional deep-rooted conservative attitude towards interpretation and implementation of law. There is nothing wrong or undesirable in this puritan approach but as is being argued by some, a legal jive and jazz approach at this critical juncture could save the system a strong jolt.
The hackneyed phrase of Pakistan passing through a critical juncture of its existence, was never more real. Virtually all ‘born-again’ state institutions – otherwise identical in their capacity crisis and professionally dismal performances – are jostling to carve out a new identity. In this post-quasi martial law moment and in the midst of an aggressive media and outspoken civil society, old boundaries are being redrawn. Key power centres are redefining their own roles, and in the process directly impacting future politics and rules of mutual institutional coexistence. Parliament, the executive and the superior judiciary are no exception to this process of reinvention.
Burdened by a legacy of collusions with one military despot after another, of judicial overlords justifying the unjustifiable with questionable doctrines of necessity, the country’s first genuinely independent Supreme Court is understandably going the extra mile. In a bid to cleanse itself from the dirty stains of the past and to ensure the future sustainability of the ‘new court’, the judges tend to appear over-conservative at times, interpreting and implementing the law in the purest possible form. But such a transformative mind set holds the possibility of developing into a messiah mentality. And in a period of overall flux where all institutions are trying to figure out where they stand in the larger scheme of things, such mind sets can help spawn unwarranted conflicts amongst institutions.
SC’s brave and bold stances are having a positive impact on people’s lives and the public psyche but it can make an even bigger contribution by turning itself into a stellar specimen of institutional excellence. To lead by example. An institutional model to emulate, and not just an institution to fear for its punitive authority.
A good beginning can be made by ending the critical shortfall of judges in the country’s high courts. Against a sanctioned strength of 60 judges, the LHC only has 37. The SHC is working with 25 whereas it must have 40 judges. The Balochistan High Court has been allowed 11 but has only got eight judges. The Peshawar High Court is working with mere nine judges against the approved strength of 20. And these numbers too got bolstered only during the last few days.
Not surprisingly, the number of pending cases runs into tens of thousands in each court. And we haven’t even started talking about the promised micro-reforms at the lower levels of the judiciary. Recently, the apex court gave a stern warning to the government for not nominating judges to the anti-terrorism courts. Instead of giving the lethargic executive a black eye for being incompetent, the court could give it a red face by its own professional working. Let the court begin by ending the shortfall of judges, because judges denied also translates into justice denied. The SC must put its own house in working order to silence its detractors.