Can’t it stop?
“May you live in interesting times” is the English adaptation of an old Chinese curse. (Part of a trilogy of curses, each imbibed with increasing severity, the other two being: “May you come to the attention of those in authority”, and “May you find what you are looking for.”)
Bet your last nickel that, in Pakistan, we live in the shadow of the curse of ‘interesting times’.
What started off as a small skirmish between the judiciary and the executive, perhaps most palpably with the NRO judgment, has slowly grown into an all-out war that encompasses episodes of corruption scandals, dual-nationality cases, contempt proceedings, prime minister’s disqualification, Arsalan Iftikhar case, contempt law promulgation, and now the possibility of a second prime minister being disqualified.
Everyone is asking the same (hardly simple) question: When will this madness end? Sadly, the stakeholders from all sides of the conflict, despite their rhetoric to the contrary, are too embroiled in personal egos (under the garb of either ‘parliamentary sovereignty’ or ‘constitutionalism’) to desire an end to this circus. And in the process, the faceless man stands to pay the price as he continues to search for the elusive fulfillment of the promise of electricity, gas and speedy justice; as the saying goes, ‘when two elephants fight, it is the grass that suffers’.
Let’s zoom out of the picture a little. What is really going on here? At the heart of the issue is the PPP government’s refusal to write a letter to the Swiss authorities to proceed against Asif Ali Zardari for recovery of 60 million dollars. And the Supreme Court, having ordered the writing of this letter, is bent upon dismissing (or threatening to dismiss) prime minister after prime minister, unless this letter is written. Now, before we lose ourselves in the constitutional arguments surrounding this issue, lets just pause to note that in a nation plagued by violence, illiteracy, religious fanaticism, acute power shortage, rampant corruption and a sclerotic justice system… the entire media, political and judicial machinery seems consumed (nay: possessed) with the writing of a letter regarding instituting a case of $60 million dollars.
Underlying fact out of the way, now onto the constitutional and political dimension.
In this instance, on one side of the spectrum, the Pakistan Peoples Party stands naked in the gaze of history. There is no coherent constitutional, political or moral argument that the party can advance in its defense. Perhaps (and not without reason) the ruling party and her legal advisors believe that this particular Supreme Court will hand down a decision on Article 248 that is biased against the current government. Still, the party claims (at least as their ‘constitutional’ position) that loyalty to the constitution demands that no such letter can be written.
Politically, the ruling coalition has taken a different stance altogether. Leaving aside constitutional nuances, the party claims that since ‘majority’ has voted them in, their decision is a manifestation of the ‘will of the people’, which is the basis of all power in a democratic paradigm, and cannot be made subservient to dictates of (an unelected) judiciary. Furthermore, the PPP coalition has realized that (in the worst case) political martyrdom is a much more appealing human feat, compared to constitutional adherence, and as a result such martyrdom will serve them better in the electoral process (as demonstrated in the recent by-elections of NA 151).
On the other side of this unheroic battle stands the honorable Supreme Court. Chin high and with steel gaze, the Supreme Court is the last arbiter of legality and constitutionality in our land. And this makes the honorable Court’s judgment infallible. All actions of the Supreme Court are, by their very definition, “constitutional”.
But our Supreme Court goes a step further. In the post Lawyers’ Movement euphoria, the Supreme Court has cast itself as more than just a court of law and equity. It has donned the cloak of being a “people’s Court”. An institution that has its finger on the pulse of the nation. And as a result, it acts in furtherance of people’s welfare and for the strengthening of democracy. But then, we must ask, is dismissing a prime minister a furtherance of democracy, when the same party nominates another one? How about two prime ministers? Or ten? The janisaars of the court do not answer this with the argument of “people’s court”. Instead they turn to the age-old maxim of law, “let justice be done, though heavens may fall.” But doesn’t that amount to having your cake and eating it too? Should the honorable court not decide, for certain, how it sees itself: a court of law, or a people’s court?
In the process, sadly, institutional roles have been reversed. A political party is portraying itself as the voice of law (interpreting its own version of Article 248). The court, on the other hand, is seen as voice of the people.
To a bystander, this institutional madness seems little more than a game of egos. Members from both sides of this fight, frequently dismiss this clash of institutions as the birth of a better and stronger democracy. Be that as it may, if these are prolonged birth-pangs of a functioning constitutional democracy, can somebody please muster the humanity of giving our nation the epidural?
The Holy Book warns, “Verily never will Allah change the condition of a people until they change it themselves.” (Surah 13, Ayat 11). Well, witnessing the current state of affairs in Pakistan makes one a believer.
The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School. He can be reached at: [email protected]