Beg your pardon?

The writer is Director News for Express News and 24/7 (fahd.husain@tribune.com.pk)

Mr Rehman Malik obviously didn’t have enough faith in the Supreme Court to wait. He had more faith in the constitutional protection that only his big boss could provide him. He could have waited to file an appeal in the Supreme Court but this wait ran the danger of the law being applied through handcuffs. And a shackled interior minister is not an endearing image for any government.

Were it a one-off thing, it could have been digested by a wary nation. But it’s not. Mr Malik’s crime wasn’t that serious. He didn’t show up for court hearings during the Musharraf years. Let’s give the man a break. He was in exile and generally when someone is in exile, it means there’s some reason he can’t come back to the country. Lawyers say it’s not such a huge deal if people don’t show up for the hearing, especially when there are genuine reasons for them to make themselves scarce. Malik’s lawyers pleaded these arguments but clearly not to great effect. The Lahore High Court handed down a three year sentence.

Talk about overkill. Except that it’s not. Here’s why: Mr Malik got caught in the crossfire. He took the blow for his boss, who threw a constitutional protective shield around him, and the legal bullet ricocheted off the verdict-proof jacket. Lucky Mr Malik. But before he and his boss pop the proverbial cork, they may want to keep in mind that legal bullets are aplenty, and the use of pardons limited.

The legal fate of Mr Malik remains uncertain but this may be the least of the government’s problems. The presidential pardon is airtight legally but a disaster politically. The power to pardon is an awesome power and legal experts say it is meant to be used when vital national interests are at stake — not to save one’s buddies. By invoking Article 45 to protect Mr Malik, the president has transformed this strategic constitutional nuke, into a tactical weapon of choice. (Point to note: the power to pardon has been challenged in the court and that’s never happened before.)

But remember there are a great number of cases of a lot of important and not-so-important government functionaries in various phases of being heard in various courts on various dates. This means ‘various’ options for various judges to hand down various sentences affecting this varied lot of various government who’s who. There aren’t enough pardons in the world to cover these yet-to-be handed down sentences. That’s what happens when you use the weapon of last resort before the actual last resort.

Every move is now courting a counter-move. The PPP high command may not admit it publicly, but all indications are that they’ve decided to confront the judiciary which, they say, is out to get them. It’s the wrong signal. When the cold war between the US and Soviet Union was at its coldest, they coined a term which described the existential threat their rivalry posed to both. It was called Mutually Assured Destruction. Or MAD. There’s a lesson in here for us.

There’s nothing the government can do which the judiciary can’t undo. Or outdo. That’s the nature of the judiciary. It judges. This means its action of judging comes after the action which is to be judged. The judges always have the last word. So why go for a win based on MAD. The downward spiral has to stop. The knight moves have to stop. The zero-sum game has to stop. And the government has to blink first. It must. Unless it wants to stare into the barrel of a gun. Again.

Published in the Express Tribune, May 21st, 2010.