Political as opposed to legal

Court ought not to adjudicate on questions that are fundamentally political as opposed to legal; the US Supreme Court ruled in Baker v/s Carr case. Pakistan’s sharply divided political atmosphere today may be the aftermaths of the adjudication of the cases that were loaded with political overtones. The similar tailspin situation exists in Bangladesh, Maldives and Kenya due to judicial adjudication carrying political contours. When judiciary tends to adjudicate on the cases with possible political consequences the uproar is foregone conclusion. The winning and losing parties take the verdict by storm. The winning party celebrates with jubilation while the losing party resorts to screaming out lungs in rage and frustration. The focus of the vituperation regretfully targets the judges, by implications the judiciary, with allegation of partisan insinuations. The resultant division of the public opinion, normally a sharp cleavage, may hurt the sanctity of the judiciary with negative ramifications to the rule of law.

Rule of law is fundamentally the bed rock of any civilised and stable society. Without rule of law a society will sink into lawlessness where might will be right as opposed to the right justifiably considered might. Its likely snowball impact may fray the social fabric incrementally leading to the entirety. In such a society, the life of the people will be, in the words of John Hobbes, poor, nasty, brutish and short. The concept of safety of life and property may be a distant cry as everyone will be against everyone in such ‘state of nature ‘.

At the heart of the problem is the non-adherence to the tricotimy of power as aptly defined in the Constitution of Pakistan? The scope of functions of each institution, Executive, Judiciary and Legislature, are clearly defined with a view to ensure smooth functioning of the affairs of the government to fulfill the objectives of the Constitution. Ironically, the smooth sailing of the institutions remained a pipe dream in the country so far mainly due to the institutions’ irresistible quest to seek dominance over others without relying on doomsday scenario. This tendency has not been jettisoned yet optimising established habits die down hard. The nation has paid unrecoverable price for this recalcitrance to the constitution. But the race for domination has been continuing without respite putting the democratic edifice under tremendous pressure, and other times horrible denouement. In the past, this tendency ruined the democratic setups altogether. The people had to have the bitter experience of the yoke of dictatorial regimes as a consequence. The tyrants subjected them to torture and persecution just to perpetuate their illegitimate rule as their only preference. These tyrannical rules are totally responsible for the prodigious collateral damages in the shape of national woes of all kinds--dismemberment of the country, Afghan war, curse of extremism and terrorism, drugs and guns culture.

The collision course between the PML-N and judiciary, which is in full glare of media, is another manifestation of the same inclination which is equally dangerous. It may not bode well for the political system as it poses grave danger with potential to eat into its vitals. All the sane voices have been appealing to the leadership of the party not to go too far as its lingering may provide the anti-democratic forces to rock the boat. Unfortunately, these sane voices are not sinking well among the PML-N leadership as its tirade has been continuing without respite. At the same time, the judicial restraint may be desirable because even a misplaced an iota of obstinacy may not yield healthy optics. Judicial restraint may be seen to be visible that perhaps is lacking in the present public polemic. The great legal mind may help the nation in averting the dangers to democracy and indeed to the federation. People at large are sure that the honorable judges will not let the adversaries rock the boat as has been assured by the chief justice some time back. The deposed prime minister may consider avoiding confronting the judiciary for another good reason as well--the baggage of the past. It is still fresh in the memory of the people when its stalwarts attacked the Supreme Court in the past. The blot of attacking the apex court is indelible. If God forbid, democracy gets hurt this time the indictment of PML-N leaders may strengthen the impression of compulsive knack for making blunder after blunder.

The PPP top leadership had earlier warned the PML-N top leadership of the dire consequences of head on collision with the state institutions. Unfortunately, all this seemed to have fallen on their deaf ears as their ongoing relentless pursuit suggests. No one was disputing the importance of judicial reforms to provide speedy and inexpensive justice to the people who were fed up with the torturous delays in courts. But undermining the institution under this drive may be flawed thinking the prognosis of which are not going to be propitious. The leadership may revisit its strategy and formulate new one based on paradigm shift keeping in view the dangers pointed out repeatedly by serious and well informed political analysts in the media .These are not times to be carried away by the hawks within the Party fold who may be pushing to the bitter end with good intentions. This time as well, their good intentions may pave the way to the predictable horrendous consequences. Be aware.

Unfortunately, the PML-N leadership held the wrong end of the stick when the PPP and other parties urged that Panama Papers conundrum should be handled by Parliament and refrain from sending it to any other forum. This recourse, it was argued, might caste shadow on the competence of the political class as a whole and also on the functioning democracy. The PPP played key role in formulating the combined opposition parties Terms of Reference (TORs) when the Supreme Court referred back the case to the parties to formulate TORs for the proposed judicial commission of the Supreme Court. The TORs recommended that investigations should start from the prime minister and his families followed by others in the Panama Papers. On this point, the PML-N leadership disagreed and TORs could not be formulated and with that the initiatives slipped away from them. If the ruling party had shown maturity and equanimity then the present embarrassing cobweb the PML-N is in might have been avoided. The democratic credentials of the political class would have also upped manifolds as the formidable guardians of democracy.

Meanwhile, some political parties--JI and AML--took the case in the apex court leading to the disqualification of the prime minister under articles 62 and 63 of the Constitution for being not Sadiq and Ameen. It is the irony of the fate that the constitutional provisions those were jealously guarded by the leadership of PML-N caused its paralysis. It may be relevant to mention here that the PPP after coming to power last time tried to strike down these clauses in the constitution incorporated unilaterally by tyrant General Ziaul Haq with mala fide intentions. But, the PML-N leadership sabotaged it perhaps considering sacroscent as being the legacy of their mentor, Ziaul Haq. The legacy hurt those who were confident of their piety. The compatibility was at variance to their dismay. The petty politics calculations blurred their sense of proportion to see wisdom in the serious move of the PPP of striking down the legacy.

It may be recalled that the PPP was not in favour of the judicial adjudication of the prime minister in the Panama Papers and urged that it should be tackled at the Parliamentary forum. The PPP being an experienced party could foresee its detrimental fallout for the political system both in short run and the long run. The sense behind this demand was also to raise the stature of Parliament as the forum capable of resolving such complicated issues without exposing the political system to multiple dangers. The acceptance of the proposal would have comprehensively addressed the potentially an explosive issue by Parliament, sky rocketing the reverence of the law makers and Parliament alike. It would have proved parliament as the ultimate forum capable of thwarting the dangers to the functioning democracy. It would have proved as the repository of the aspirations of the people signifying its supremacy. The party lost this opportunity only to cause a tumultuous political situation, if not by design but surely by default. The true leadership turns adversary into opportunity while tunnel vision leadership turns opportunity into adversary. If the PML-N leadership had anticipated correctly, it might have not been in hot waters of today.

The country’s apocalyptic political situation of today might have not come to the open if the apex court had referred the Panama Papers case back to the politicians or to Parliament. The Parliament would have dealt the issue in a way of making a win- win situation after hair-splitting negotiations to find convergence as they know the art of possible. Such Parliamentary solution would have given boost to the Parliamentary politics cobbled with pouring in of appreciations both from within and without. Secondly, the judiciary may have not been possibly subject to awkward position in the eyes of the people.

muhammadshaheedi@yahoo.com