Swiss letter, and spirit

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A judgement is a judgement

It is actually not that complicated. Are the judges always right? No. Should their judgements always be followed in letter and spirit? Yes.

Here’s why: The rule of law depends on this. And modern societies depend on the rule of law. That is how the system works. It doesn’t always produce pristine justice, and neither does it always punish the guilty or reward the wronged. But these odd discrepancies are the price societies pay for maintaining order, preserving a structured way of life and ensuring that the governed are governed in a civilised manner.

What we are witnessing as the NRO hearings unfold is a violation of this basic principle of modern governance. In the day-to-day wrangling between the judges and the government, we tend to lose sight of the macro-problem this tussle is generating: a problem which will return to haunt us if it is not settled as per the norms of modern societal requirements.

In fact, the larger principle of judicial sanctity overrides the omissions and commissions of individual judges, or benches or even collective judgements on particular cases. What is at stake is the running of the state above and beyond the harsh realities – and dictates – of power politics.

Let us put this in the present context. First, the good part: the seven member bench of the Supreme Court hearing the NRO case summoned the prime minister and he appeared before them on Thursday. This very act – howsoever grudgingly it may have been done – fulfilled the requirements of a functioning state. By answering to the summons, the prime minister gave the right message to the nation that he bows before the majesty of the exalted court. The court acknowledged this by saying it was a great day for the rule of law.

The form was spot on. The substance was not. Herein lies the bad news.

The court has given a judgement, and the government does not like it. It feels the court has not judged it on merit; rather it has allowed personal grudges to override its sense of justice and fairplay. The government does not say this publicly, but its minions are not so circumspect. Innuendos fly like a hail of burning arrows. The likes of Babar Awan are in fact as nuanced as a sledgehammer crashing into a glass door.

Let us for a moment assume that the NRO judgement is faulty. Let us also assume that ordering the government to write a letter to a foreign government against its own president (and party co-chairman) is – to say the least – unfair. Even if these assumptions hold true, does it mean the government, on the basis of its genuine grievances, has the right to refuse implementing the judgement?

Supplant the government with an individual, and the argument becomes clearer. If a court convicts a person on murder charges, and we know he did not commit the murder, what does he do? He appeals to a higher court, and then a higher one, till he reaches the apex court. Even there if his appeal is turned down, he is sent to jail on death row. He may be an innocent man, and he is paying the price of a faulty judicial system, but he still goes to jail. There are numerous cases where people held on death row are released years – and even decades – later when a fresh investigation proves they were innocent and the court was wrong. The single individual suffers a bad judgement because there is nothing more he can do. A judgement, good or bad, is always implemented.

The government is no different as far as this principle is concerned. The fact that it is defying the court because it can, and the individual cannot, violates the fundamental spirit of the law. If the powerful can flout judgements while the weak can’t, then the basis of the rule of law is undercut, and the glue that holds a modern and civilized society together will begin to come apart.

This is no rocket science. But the logic is crippled when it smashes into the harsh realities of realpolitik. Consider this a clash of political science versus political practice. The former carves out broad frameworks under which political entities and players can practice the art of politics for the greater good. The latter focuses on the pursuit of naked power.

And naked power is what continues to define politics as practiced in Pakistan. PPP is no exception. In fact, given a similar situation, other parties are likely to respond in a generally similar fashion. The past is proof enough. Power politics has its own logic and unfortunately this logic is perceived as conventional political wisdom in Pakistan. This may in some measure explain the dysfunctional state of governance in the country.

Politicians are by nature ruthlessly practical. It is only the steel cage of laws and expectations of the electorate that keep their power lust in check. This way they are forced to balance their own individual ambitions against the notion of larger societal interests. When this equation is imbalanced, and naked power begins to dominate larger principles, we find ourselves in a situation that we are seeing in the NRO case.

It is not really that complicated. For the greater good of this republic, the letter must be written.

The writer hosts a primetime talk show on ARY News. He has worked as Director News of Express News and Dunya News and Editor The News, Islamabad. He can be reached at [email protected] or on Twitter @fahdhusain

10 COMMENTS

  1. Very good analysis, Fahd. Now somebody mail this to all the liberati who keep defending the PPP's digression just because. I understand the courts might have 'other' intentions but the PPP is not entirely to be absolved. Strictly legally, the court isn't wrong. Being pro-democracy doesn't mean you should be blind to the failings of the incumbent….

  2. I never knew that Fahad Hussain is so simple and innocent. We are talking about a common man on road, but President of Pakistan – a fact we like or we don’t. The analysis has no mention of Article 248, which is the very point of contention.

  3. the article and his author are biased. you cant hand just keep doling out selected justice. You are asking the govt to write a letter on one hand and asking the NAB to hand back the propeties on the other.

    • Riaz sb. plese read article for your answer with an open mind. In any case Fahad is making a hypothetical case. The judgement is not necessarily flawed.

  4. Spot on Fahad. Just like flawed democracies must continue, rule of law must always stay supreme. This will also help keep undemocratic forces out of the equation. The right system must continue.

  5. well done Fahad, the rule of law is the supreme and the great lawyer is who works more than anybody else to set up/ maintain the rule of law. the people who say that the courts are not taking action against nawaz sharif etc. should know that courts have limited scope (suo moto) to initiate legal proceedings whereas the government of the time has very broad power to do the same. and if the government of the time is not doing this, blame zardari and gilani

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