And find inventive ways to do so…
The no-holds-barred confrontation between the executive and the higher judiciary has finally taken its toll on the polity. The clash of institutions is now head-on. Despite dissensions amongst its ranks, the ruling coalition has finally amended the contempt of court law in unholy haste.
Clearly anticipating what was in the offing, the Chief justice of Pakistan has already given his verdict. According to him, since the constitution of the country is superior to the legislature, the parliament is not supreme. The CJP while addressing lawyers the other day has reiterated the right of the Supreme Court to strike down any law it considers ultra vires of the constitution.
Justice Iftikhar in the same speech at the Sindh High Court has expounded a novel theory according to which Pakistani laws were not a continuum of the British system and the arguments made by lawyers (in Pakistani courts) have become the ideology of the future.
It is obvious that the fragile democratic system has entered a dangerous phase. A majority of the seventeen judges of the Supreme Court are developing an ideological halo. Their judgments – spiced with poetry and anecdotes – have assumed the mantle of being the final arbiters of matters legal and political.
In our chequered history, usurpers like General Zia-ul-Haq and General Musharraf during their long rules had developed a messiah complex. Inventing hybrid models like ‘Islamic democracy’ followed much later by ‘true democracy’, these dictators took refuge behind self-styled ideological frameworks to perpetuate their interests. Of course, the higher judiciary of the time readily legitimised their shenanigans.
Till now, the PPP-led coalition had shown remarkable restraint in the face of a highly proactive and at times restrictive judiciary. However, it seems the sacking of Prime Minister Gilani and now the sword of Damocles hanging over his successor has proved to be the last straw that broke the proverbial camel’s back.
Aitzaz Ahsan, the lawyer of former prime minister Gilani in the contempt case, has expressed his reservations about the new contempt law. Declaring it discriminatory and in clash with fundamental rights enshrined in the constitution, he has rightly predicted that it will be struck down by the apex court.
Aitzaz, interestingly enough, has previously made the argument that Gilani was charged for contempt under one clause and wrongly convicted under another. Implying real or perceived bias on the part of the judges, Aitzaz was of the view that his client had not committed contempt of court by refusing to write the elusive letter against Zardari to the Swiss authorities.
Whether the new contempt law will save the incumbent Prime Minister Raja Pervez Ashraf from being axed by the apex court is a moot point. Nevertheless, the higher judiciary should not be in the business of sacking prime ministers. Nor the executive should put it in a position where it is forced to do so.
Elected prime ministers should be voted out by the electorate or, in the case of real or perceived misconduct, under the procedure laid out in the constitution. Previously, presidents in cahoots with meddlesome army chiefs sacked both Nawaz Sharif and Benazir Bhutto twice over. Also, most legal and political circles consider Zulfikar Ali Bhutto’s conviction by the higher judiciary at the behest of a military strongman a ‘judicial murder’.
In the present scenario, all the parties would do well to understand that discretion is the better part of valour. The apex court needs to temper its hyper-activism with a judicious use of judicial restraint.
On the other hand, the executive should curb its newfound enthusiasm to curb the judiciary. No matter which way one looks at it, ultimately in this clash of institutions, the democratic system will be the obvious casualty.
Senator Mushahid Hussain, the general secretary of PML (Q) – a major coalition partner in the ruling alliance, has also opposed the passage of the new law. He thinks that tinkering with the media and the judiciary is a recipe for disaster.
The worthy senator should know better. After all, he was the information minister when Nawaz Sharif as prime minister, heady with his ‘heavy mandate’, took on both the media and the judiciary – albeit with mixed results. As they say, hindsight is always 20/20; Shah sahib now firmly believes that this led to the premature demise of the Nawaz regime. He is spot on.
The PPP legal eagles have probably calculated that by steamrolling a faulty and controversial law through the parliament, they have bought time for the new prime minister. Perhaps a better strategy and a sure shot way of salvaging the system would have been to go for relatively early elections. The PPP should try to evolve a consensus on this single point rather than parroting the mantra of completing its term, come what may.
Going by the law of averages, the present government has done better than its predecessors by surviving political landmines for more than four years. With a little more than six months left of its remaining term, it has already entered the twilight zone. Hence to initiate consultations for an appropriate and practical timetable for holding of general elections and the formation of a caretaker setup for the purpose is the easiest way out.
In the meanwhile, the higher judiciary – instead of trying to reinvent the wheel and, in the process, taking the risk of throwing the baby out with the bath water -should exercise restraint. If the PPP is not willing to write to the Swiss authorities, let it face the music at the hustings. The party meeting its fate at the hands of electorate would be better than the apex court being opened to the serious charge of engaging in a witch-hunt.
Back in April 1979, when Zia hanged Zulfikar Ali Bhutto, the London Economist ran a cover story titled “We also hang our prime ministers”, with the dictator’s picture on the title. Elected prime ministers being sacked by coupsters was passé in our hapless republic. But sacking elected prime ministers and scuttling democracy in the process is a distinction the independent judiciary could do without.
The writer is Editor, Pakistan Today