Legal eye As a predatory society nurtured by a predatory state, we have begun to enjoy mindless violence. You will hear educated folk proposing hanging a few people in the town square as a solution to thorny institutional and behavioural issues in everyday conversations as if that is the elixir. Our latest target is Zahid Hamid. We want him burnt at the stake. Not because he is guilty of any crime, but because we need a sacrificial lamb to allow bigots a victory and calm their senses, and he is available as a convenient fall guy. Our responses to Finance Minister Ishaq Dar and Law Minister Zahid Hamid manifest much that is wrong with our polity. Ishaq Dar was charged with offences under the National Accountability Ordinance and is being tried by an accountability court. He has now been declared by court to be a proclaimed offender. He is to be arrested and presented before the court by the state and his property is to be attached. (In simple terms, a proclaimed offender is a fugitive from justice and the law draws adverse inference against such accused). Mr Dar wasn’t arrested pending trial, as an ordinary citizen would be, essentially because he is a cabinet member and part of the government that exercises the state’s executive authority. (Article 90 vests the federation’s executive authority collectively in the prime minister and federal ministers). He is also Nawaz Sharif’s relative (father-in-law of Nawaz’s daughter), who agreed to become an approver against NS during Musharraf’s regime (which he claims happened under coercion) and is thus considered a weak link in the references against NS. After appearing in court a few time, Dar fled the country. He was able to do so as he was reportedly performing duties as finance minister that required him to travel outside Pakistan. His name had not been placed on the Exit Control List. And while he has been declared a proclaimed offender, the government that he is a part of won’t approach Interpol to drag him back like an ordinary fugitive. We are told he is too unwell to travel back to Pakistan and face trial. Now his leave of absence has been approved but he is still being retained as a cabinet member. Can there be another way to bring the state’s executive authority and rule of law under greater disrepute? As a minister, Mr Dar swore an oath which states that, “I will discharge my duties, and perform my functions, honestly, to the best of my ability, faithfully in accordance with the constitution and the law…I will not allow my personal interest to influence my official conduct or my official decisions…I will preserve, protect and defend the constitution…” Can he, as a proclaimed offender, swear in God’s name to be upholding his oath? PM Shahid Khaqan Abbasi has also sworn a similar oath. He has the authority under Article 92 of the constitution to advise the president to remove a minister from office. Does he truly believe he is doing right by Pakistan and its people without fear or favour, as he swore in his oath, and is honestly discharging his duty and not letting his personal (or party) interest influence his official decisions, while he refuses to exercise his authority to remove a proclaimed offender from being a repository of the state’s executive authority as cabinet member? The main reason we continue to suffer Dar and demonise Hamid is the same: the right thing to do is of no consequences to the PML-N’s politics if it can possibly hurt the personal interests of NS. Dar lacks the spine to persevere under pressure, some say. NS can therefore not risk Dar’s breakdown while being dragged through the accountability process. His removal could be seen as admission of guilt or weakness. The PML-N has thus chosen to inflict ignominy on Pakistan to retain a fugitive as a minister. Zahid Hamid committed no crime in overseeing the evolution of the Election Act, 2017. But while simultaneously under pressure from the religious lobby (in relation to Ahmadi-related provisions) and the opposition (for enabling NS to become party head while he is disqualified under Article 62), the PML-N decided to throw Mr Hamid under the bus to appease the religious lobby and dig in its heels to fight the opposition over Nawaz’s ‘democratic’ right to be party head. The constitution defines Ahmadis as non-Muslim and no subsidiary legislation can declare them otherwise without a constitutional amendment. The Pakistan Penal Code makes Ahmadis-posing-as-Muslims a crime and the Election Act, 2017 didn’t seek to amend Sections 298A, B and C of the PPC. Sections 7B and 7C of the Conduct of General Elections Order 2002 were redundant provisions included in law by Musharraf to humour bigots (upset with minorities being given equal right to vote through joint electorates) by agreeing to persecute Ahmadis as lesser citizens. The religious lobby could be told off and the Election Act 2017 defended in its original form. Had NS not been removed from office and had Dar been law minister, the PML-N may have chosen to do so. But in our history many a scoundrel, under pressure from bigots, have elected to use bigotry in the name of religion as a shield. The PML-N didn’t wish to use up its political capital to defend the Election Act 2017 on a point of principle and refuse persecuting a minority or allow bigots to further terrorise people in the name of their own religion. There is no reason in principle why the fundamental right to association guaranteed by Article 17 of the constitution should be subservient to Articles 62/63. But in the presence of Article 63A, which enables a party head to autocratically control his/her party parliamentarians, reasonable people can disagree about the issue. And so the PML-N chose to appease bigots to get them out of the way and focus exclusively on fighting to save the provision under attack by the opposition that allowed NS to be re-elected as party head while disqualified from office. Captain Safdar, the son-in-law, landed back from London and chose to garnish his own credentials as bigot-par-excellence by delivering a hate speech against Ahmadis in parliament. When the PTI had threatened to lock-down Islamabad and Justice Shaukat Siddiqui of the Islamabad High Court had issued an order declaring that to do so would be unconstitutional, as the right to protest had to be balanced against the right of ordinary citizens to enjoy their rights and entitlements, the PML-N had expressed its resolve to implement the order in letter and spirit. We had heard one minister after another thunder that PTI miscreants would not be allowed to challenge the writ of the state or threaten public order through street protests. If that was a principled stand back then, why has the principle vanished in thin air in the case of 2000 protesters now holding the twin-cities hostage? Why is the IHC order not being enforced now? Amid our civil-military mistrust, the PML-N smells conspiracy, believes mishandling the brigade camped at Faizabad could result in a nationwide campaign to bring the PML-N down and is thus loath to exercise state authority to clear out Faizabad. Conversely, many ex-khakis believe the protest is a continuation of the attempts to keep the army command under pressure. Cynics believe bigots are simply playing all pygmies leading this country by employing the religion card and usurping power they cannot garner at polls. And realists know that together we are stoking a fire that will burn our house down. But consumed by petty interests in our no-holds-barred principle-neutral zero-sum politics, each player believes the safest option is to appease the bigots. So for now the PML-N has chosen to embrace Mr Dar and hang Mr Hamid out to dry with a bulls-eye painted on his back. The writer is a lawyer based in Islamabad. Email: sattar@post.harvard.edu
