Legal eye: The system at work

The season of false binaries is upon us again. The choice is between lazy moral righteousness celebrating a false dawn promising accountability and rule of law, and taking up arms for a trumped up revolution meant to liberate and empower an electorate in shackles due to conspiracies. We are told that the middle ground is sordid and it’s time to stand for principle. The problem is that there are principles and hypocrisy in equal measure on both sides. The tawdry means being employed in the name of lofty principles only expose the hypocrisy of our ‘system’.

Nawaz Sharif’s exclusion from parliamentary politics might do no damage to our democracy and might actually be the best thing for the PML-N’s evolution. The strongest argument in favour of the continuity of the political process is not that it has installed a system of governance that is effective or citizen friendly, but that there is no preferred sustainable alternative. If NS’s third term established anything, it is that he was complacent and out of ideas. The only time you saw him hustle was when he risked losing power.

A PM – like the current one – who needs party and institutional support and can’t function as an autocrat will need to evolve consensus on critical issues and might produce much better governance. If NS can only be kingmaker and not the king and is unable to bequeath his party to his favourite child as family heirloom, his quest for a legacy could encourage him to practise politics of principle as opposed to expediency, and the PML-N could possibly emerge as something larger than NS’s alter ego. As they say, if wishes were horses…

But evolutionary changes can’t be forced from outside. That is something our ‘system’ has repeatedly tried and failed to accomplish. Our system, like those it wishes to control, is impatient, autocratic and refuses to learn from its mistakes. Given that non-representative institutions dominate it, it has no faith in human agency or autonomy. In making NS damaged goods, the system has also made him prohibited fruit. The GT Road rally suggests that NS has some fight left in him and he is willing to fight dirty now that he has nothing further to lose.

If left alone, NS might have become extinct like dinosaurs out-of-sync with tides of time. But now we have a wounded beast on the prowl. The system might have inflicted a thousand cuts but NS is still breathing. Call him corrupt or dirty, non-sadiq and non-ameen, but he resonates with a support base large enough to be reckoned with. What if his base comes out to vote for his party in 2018 and hands him a sizable number in the National Assembly? That is the leverage – the ability to threaten the system with a gridlock – NS is now vying for.

“There is hardly a political question in the United States that does not sooner or later turn into a judicial one”, Tocqueville had noted. To avoid getting dragged into the political thicket, the US Supreme Court contrived the political question doctrine. As articulated in Baker v Carr, it essentially states that if a question is fundamentally political and not legal, the court isn’t the appropriate forum to address it. The manner in which our Supreme Court dealt with the Panama case made the matter fundamentally political as opposed to legal.

Baker v Carr identified the following characteristics of a political question: textually demonstrable commitment of an issue to another institution; lack of judicially manageable standards for resolving it; impossibility for a court’s independent resolution without expressing a lack of respect for another state institution; impossibility of deciding the issue without an initial policy decision, beyond the court’s discretion; need for unquestioning adherence to a political decision already made; or potentiality of embarrassment from multifarious pronouncements by various institutions on one question.

Our SC has rejected the doctrine – unwisely, the Panama verdict would suggest. This decision has created more legal and political uncertainty than before. The SC elected to adjudicate an issue that ought not have been addressed by the apex court in the first instance. Its reason for doing so was its declared lack of faith in almost all other state institutions. The decision doesn’t articulate a judicially enforceable standard that can be a precedent for other cases. And the legal reasoning is so wanting it seems to be a botched exercise at justifying a prior policy decision.

Legal accountability and representative governance are not competing values. But how principles of accountability and rule of law have been given effect in the Panama case leave much to be desired. The legitimacy of the judiciary is rooted in its credibility as an impartial guardian of law. But when the meaning of rule of law becomes as fluid as the subjective preferences of judges, the justice system stops speaking with one voice. The judiciary emerges as a power player with the ability to produce political consequences, but at the expense of its credibility.

The Panama verdict is final. NS and the PML-N have no option but to accept it. But that doesn’t make it beyond reproach. Judicial decisions ultimately stand on their reasoning and not on the threat of use of contempt powers. The Panama decision is disappointing most of all for its failure to contemplate how to bring back to life an across-the-board institutional mechanism to give effect to the twin principles of accountability and rule of law it purports to stand for. Does our new saviour model entail the SC arrogating to itself powers of investigator, prosecutor, judge and enforcer in all cases?

By riling up public opinion against the judiciary, NS is acting as our vile system has trained him to act. The lawyers’ movement nurtured such staunch public opinion in favour of the restoration of judges that the term ‘PCO’ became a curse word, notwithstanding that many of the non-PCOs had once been PCOs. More recently, we saw the judiciary systematically attacked after it took up the Musharraf treason trial. Musharraf was allowed to fly away for sporting a weak spine. But the system showed it had a strong one and saved itself.

We saw the judiciary viciously attacked during Dharna I for failing to declare that Election 2013 had been stolen by the PML-N. The PAT and PTI set up private check posts on Constitutional Avenue manning the entrance to the SC. Even the judges had to be taken to the SC through hidden routes. Ultimately, those who attacked the judiciary stood victorious. Thus, while the principle remains that state institutions like the judiciary ought to be treated as sacrosanct, recent practice illustrates that those who vitiate this principle are eventually rewarded.

So what options were available to NS after his ouster? He was thrown under the bus. Option A could be to walk into the sunset all sullied, making the Sharif name a burden in politics for his next generation and witnessing the demise of his party before his eyes. In such an event, what happens to every weakling caught at the wrong end of the system would happen to NS and his family. After all, with NS being thrown out, our system or its institutions haven’t been overhauled overnight. It’s just that NS has lost a round in the game of snakes and ladders.

Option B is NS fighting back. So long as the possibility of his survival is real, his party won’t be dismembered. If he convinces his support base that it is he who has been wronged and no matter how he has been demonised he is still the best amongst available options, he could secure a comeback for the PML-N in 2018. Only if that happens will he have a seat at the high table. Power will bring him the leverage to renegotiate his future within the system. It’s a delicate game: he mustn’t challenge the system; only push it enough to make accommodation.

In our amoral real politick driven system, isn’t NS responding how the system has programmed players to respond?

 Email: sattar@post.harvard.edu

The writer is a lawyer based in Islamabad.