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Politics wins over law
Court’s now on a byway, I have sneaking suspicion that the man sitting with Cheshire cat smile resides in Presidency!
The writer is a senior journalist and has held several editorial positions during his career. He was a Ford Scholar at UIUC and a visiting fellow at the Brookings Institution
Let’s try and figure this out.
If the Supreme Court of Pakistan adjudges the prime minister to have contemned the court and sentences him for that reason, the court is deemed to have acted in prejudice to the interests of democracy in Pakistan. The court’s application of law within the strict confines of a particular case is supposed to militate against the political interests of the PPP that are somehow synonymous with the larger interests of the people of Pakistan and Goddess Democracy. That being the case, the only correct decision by the court would have been to go beyond the legal reasoning of the case and take a political view of the situation through the prism provided by the PPP, and by doing so hand over a legal decision that by being partisan-political would be acceptable as correctly legal.
“Orr was crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. Orr would be crazy to fly more missions and sane if he didn’t, but if he were sane he had to fly them. If he flew them he was crazy and didn’t have to; but if he didn’t want to he was sane and had to.” — Catch-22
Like Yossarian, I too, am “moved very deeply by the absolute simplicity of this” reasoning.
But leave this aside. The ground situation is that the round goes to the PPP, as have previous rounds and as will the coming rounds. The party, which is also the government and therefore wields executive authority, has decided to cock a snook at the judiciary and use delaying and diversionary tactics to frustrate it. It is fighting a diversionary legal battle and marshalling political resources to impact the legal process. It has its own and the voters and supporters of its coalition partners to bank on. It is using multiple channels and platforms to create the executive-judiciary fault line and proactively trying to widen it. Its strategy: deepen the crisis.
Brilliant, if it weren’t so lethal for the country. The prime minister appears in the court (he has done so three times already) and says he genuflects to the court. Yet, he is there and now convicted because he would not do what the court wants him to.
Frustrate, delay, divert, goes the three-pronged strategy. As the punch line of the Punjabi joke goes, the court has been made to run after the taillights of the truck. The real issue, President Asif Ali Zardari’s Swiss account and the court’s direction that a letter be written to the Swiss government, is all but lost in the issue of the prime minister’s contempt case and his sentencing. The court’s now on a byway and I have a sneaking suspicion that the man who is sitting back with a Cheshire cat’s smile and enjoying it all resides in the Presidency!
There’s deep irony here. When General Musharraf, the military dictator, axed the judges, the country stood up and supported the judiciary. An independent judiciary was the touchstone of democracy and democratic functioning and therefore people had to take to the streets to register their protest and force the dictator to reverse his decision. Today, with a political government in the saddle, democracy is to be secured by telling the judiciary, ae lavo tay hore choopo. What’s best is that the judges are about to realise, unless they do not already, that a political government can middle-finger the judiciary more effectively because its actions are deemed to be more legitimate than that of a dictator’s, the merits of a particular case notwithstanding.
But the worst hand a political government can deliver is to make the debate partisan and divisive, which the PPP has done so well. Securing one person’s interest made to look like the sacred struggle to establish and entrench democracy. Facts can be selected; straw man arguments mounted; circular logic used. For instance, refer to the judges as being a bunch that took oath under the first PCO, while ignoring the fact that this entire NRO business was the same dictator’s attempt to make a deal with the PPP, which leads the current coalition government, and whose biggest beneficiary now occupies the office of the President.
The issue then, as now, is, should the anomaly be ignored at this stage for the broader functioning of the country? Barrister Aitzaz Ahsan, now the prime minister’s counsel, took a legal-absolutist position at the time. His position has undergone a change and is more political-utilitarian. He was also in favour of writing the letter to the Swiss government; his position has changed on that account as well. There were many other luminaries of the lawyers’ movement of the past that have been turned around by the ‘persuasive’ PPP!
What lies ahead, of which the foretaste was given us by Barrister Ahsan’s press conference, is to tell the judiciary that the fight is on. The dialectic is legal-political. Barrister Ahsan is to mount the legal defence and use his brilliance to come up with finer points of the law while prearranged political mobs are to protest the highhandedness of the judiciary in different parts of the country, more specifically in Sindh and southern Punjab aka Seraiki suba.
The court has law; the government has politics. In the absence of any third party to come in and settle the issue or called upon by the court under Article 190 of the constitution, the judiciary has already lost the battle and the government knows this. Sentencing the PM means nothing, not only because his counsels will argue legal technicalities while the PPP gives a fillip on the street to anti-judiciary sentiments, but also because even if, in theory, this PM were to go and another installed, the letter will still not be written. Period.
This is the stuff of transitions, chaotic, unstable, demagogic, full of chicaneries and partisan positions.
Published in The Express Tribune, April 28th, 2012.
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Reader Comments (38)
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You wrote “the only correct decision by the court would have been to go beyond the legal reasoning of the case and take a political view of the situation through the prism provided by the PPP, and by doing so hand over a legal decision that by being partisan-political would be acceptable as correctly legal.”
No the SC would never do that for an elected PM ever especially when they are from a secular party. However, the SC exactly has been doing what you have written and I have quoted. ZAB’s hanging was not just Gen Zia’s doing, the SC judges were equally responsible for that judicail murder. Never in the history of SC it ever opposed the high treason by generals, in fact they have endorsed and supported it. There never was a military takeover they did not love!
Since when has the SC degraded itself to be a sole trial court? SC is the last legal avenue not the first and the PCO judges have made it. Why is the SC has become a fulltime trial court taking up only political cases as if they have no appeal cases involving murder charges and constitutional appeals. Just like the ZAB verdict the whole civilized world has no respect for this court anymore. What else can we expect from an ISI/judiciary alliance? No wonder the voters have promptly given their verdict in favor of PPP and PM even from the stronghold of PML-N. The elections are won and lost in the rural heartland not by the urban elite who think they are much better than common people. No wonder the rightwing is afraid to face the coalition govt in the next elections they want to take over via backdoor as the past proves.
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Bottom line is he is now convicted.He can not remain a convict and a prime minister at the same time.He should step down.
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Establishment is in over drive. What’s going on? Establishment trying to capitalise on current post SC decision situation?
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@elementary:
Convict for upholding the constitution. Something commendable as Multan election result has shown. PM is people’s hero, apparently.
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Thank you M.. Haider. As always you are the only sane and intellectually reasonable voice in the Op-Ed section of this newspaper!!
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They say that Caesar’s wife should be beyond suspicion.. But in this case he has been convicted.
Prime minister of a country in whose hands lies all the power is a CONVICT… how much ever he drums up the cause of protecting the constitution, he is still a convict.
Moreover, there is hardly someone who believes that he was protecting the constitution by not writing the letter to expose corruption!!!
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If I hate PPP for using democratic cover, Shahadat and victimization for the purpose of political survival but at the same I am not blind that i couldn’t see politics behind a supreme legal institution.
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Law is nothing but potter’s clay in the hands of politicians.Recommend
Just one correction Mr Haider:
PCO of a subversion of the said Constitution and a violation of oaths taken on Holy Quran to protect and abide by the Constitution, where as the
NRO was a unilateral ordinance later declared void and issued by the dictator President who was legal President at the time because these very judges allowed him to contest elections.
Understand the difference!
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Ejaz -Yet again you have fallen for establishment’s point of view – hook, line and sinker..
The facts are:
SC has failed to show any haste against any case against the generals – both sitting and ex.
SC has thousands of cases lying against all major political parties on various matters yet is overconsumed by Memogate and NRO case.
Other millions of people wait in vain as the partial judiciary puts all its resources in ‘convicting’ an elected PM and asking the gov to write a letter to the Swiss gov under which the President already enjoys immunity.
SC has yet to decide on a single case related to PML-N or establishment.
SC has not acted against any of the sitting or ex judges with such gung-ho attitude who took oath under the PCO as it has done for all / any case under this gov.
I am not pro PPP but the way SC appears to be going after this gov has created a very clear perception that it is one-sided and biased in its ‘legal discourse’.
What about all those pronouncements from Iftikhar Chaudhry when he was de-seated about changing the legal landscape to provide respite to millions, to fast track hearing of the cases and change the perception about the judicial system by providing fair, free and quick justice to tens of millions… That has evaporated together with the integrity of this judiciary.
You know as well as anyone else that this is NOT a legal matter that there are multiple forces at play and that SC appears to have a very serious axe to gring against the PPP>
Haris
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@Mirza:
Very well said.
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This is why in the community of nations today, Pakistan is at the very bottom. India, while faring somewhat better, but for the same reasons, is somewhere in the third quartile. And, there are some countries that are right at the top.
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Missing from the court is the decision on “Missing Persons Case”. This case, if my memory serves correct, was initiated during Musharraf dictatorship almost 5 years ago and according to the Supreme Court of Pakistan, these persons were made “missing” by the agencies.
Never ever a General has been summoned in the court to solve such an important case involving life and death of thousands young persons who should be considered innocents unless proven guilty.While the case is in the highest court, more mutilated bodies keep appearing because the court is busy in suo-motto cases.
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SC has become more doubted in its function.
By the way,no law in Pakistan ‘but only politics’ if that is that is only for feebles not for powerful,so ;politics prevails’ for while, see its consequences in the upcoming days.
God May bless Pakistan.
If Bhutto was executed by the SC,because he became so week politically, had no massive support, his colleagues, ministers, cabinet memebers ,after collapes’ never accompnied him.It was political dilemma at that time and also the worst political dilemmat at this moment.
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Wouldn’t it be great to see a day when PPP lovers above can at least recognize the fact that the premiere was wrong in this case…even if the judiciary has a political bias where one party’s case is taken up and not the other one’s…the fact remains that PPP is on the wrong side of the moral line…it is like we are debating over two thieves and why one was punished while the other was not…while the bottom line issue is being ignored altogether. Rather than just focusing on the judiciary for a moment, how about the realization that may be PPP needs to fix itself as well???
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How many decisions of the Pakistan Supreme Court for the last 64 years have been political and destructive for Pakistan? You want to make a list of those Ejaz? And have any of these PCO judges on the court ever punished or condemned any of those SC judges? Who pardoned these PCO judges? They apologised and pardoned themselves and did not give themselves even a 10 second imprisonment. They do not have the moral authority to sit as judges. If they have any decency and respect for Pakistan, they should all resign.
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Now we have more than one convicted persons in the corridors of power.One is of course the prime minister who was condemned by the judiciary and the other/others are those judges who have lost their positions by taking another oath/s under the P.C.O.The honorable Chief Justice is accused of doing it twice if not thrice.By that action He has lost his seniority if not his job.He and the Prime minister should both resign and leave the nation to solve its problem.We have many other pressing problems and we should divert our energies towards them.ENOUGH IS ENOUGH .
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My sympathies are with PPP, as it s more secular than others, but think PM should resign, even when judiciary seem one eyed. An eye for an eye will make the whole world blind.
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SC has done a grievous wrong by taking an absolutist legal position unanimously and devil may take care of rest attitude . The court should have deferred to Aitezaz ‘ s suggestion that letter be written when the president steps down from presidency in view of his immunity prerogative . Presidential sovereign immunity is uncontestabe in view of the explicit wording of the clause and its recognition by international community . SC demand that president seek immunity from the court is politics and not law SC should have avoided getting into this controversy .
The politician ‘ s particularly PML ( N ) shouting foul play should know that the assemblies and parliament ( NA plus Senate ) elected the president unanimously while they stood by the big
brother . Were they not aware of Swiss case ? It is political chicanery to ask PM to step down tak
ing cover of SC verdict on the part of opposition political parties . These parties should not rock the boat and let the court process be completed .
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PPP has forced the Court to take a political decision.In the the process the court has been wandering in the alleys and by lanes and according to Ejaz ” the man who is sitting back with a Cheshire cat’s smile and enjoying it all resides in the Presidency!.
judiciary has created another chaotic situation.– more waste of time of the nation then give them any direction . Meanwhile, the corrupt and plunderer moving unabated, still at large.
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Amitabh Bachan doesn’t want to go out of sight. So does the court!
Instead of preying on political executive, the court could have ordered the bureaucratic executive to do its bidding. But to give a dog a bad name just to hang him doesn’t make sense.
And the PCO judges have no right to interpret the very Constitution they have time and again trampled under their feet. The respect that the judges have for the constitution has been made evident again by their verdict that when a prime minister wants to safeguard the supreme law of the land, the judges want him to go against it.
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@Umer:
No convict for not obeying Supreme Court’s orders .. Unfortunately, these type of politicians are a curse to this country .. regardless whether from PPP or PML. If they cared even a bit for the country, would have removed this infamous president and complied with the orders, but they would instead serve their political masters than caring for this hapless country.
People should stop voting all these parties till they become democratic and start rotating their own party leadership by choosing presidents etc from outside of these few families.
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for you English reading people
When musharaf came to power ,public perception was that itbis good for country
when mr chowdhry was removed from office ,public perception was that musharaf did wrong
today public perception is that this judiciary is targeting PPP and no one is coming out to support it’s decisions
the public is supreem and will return people of its choice to power
respect their decision and most of you have benifited from the schools and colleges funded by this very public you ridicule
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All the damn corrupts and their sympathizes have no shame and dignity. PPP has few of its corrupt leaders die due to stupidity of a few dictators hence they have to loot and plunder and not follow the rule of law. Where else but in Pakistan where corrupt and sleazy claim to be victims instead of the poor masses who elected them and are victims of their crimes of negligence and theft of exchecker.
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this decision is too political.
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Having seen PPP supproters lame excuses,and dogged determination to defend one of the most corrupt duo of PM and President Pakistan has ever seen,one wonders perhaps we deserve to be in the mess we are in.
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@Umer:
And What did the ephedrine case prove to you ?
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It is basically global institutions which are at fault than the Pakistan’s. The countries like Switzerland, live primarily on such dirty money stashed away by dirty politicians from world over. Why test Pakistan’s institutions for some rich countries fault, that too at the cost of “broader functioning of the country”? I have a very simple question. how can global war on terror could be won, if there exists trillions of dollar unaccounted money in Swiz bank?
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Super logic of our great PPP fans is that because SC has not or can not do the same to establishment therefore PPP leaders should not be convicted of their crimes.
Secondly they are the only secular party,their ever spiralling corruption and complete apathy to woes of a common man, are a small price to pay if we do not wish the right wing extremists anywhere near the corridors of power.
Thirdly because SC decision against ZAB was contoversial therefore no decision now or ever in the future could be fair against PPP leaders,no matter how low they stoop in their conduct of governance or how high they go in the history of record breaking corruption.
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PPP is in for a surprise. At their big day all they could muster was a few clowns in Sindh. Now the other shoe will drop, People can see through their shenanigans. Their saving grace is a disorganized opposition and being at end of an election year. But any political force if it decides can administer a much needed slap across their face to restore their senses. The ppl are Mad and have had enough of these self obsessed parasites and their sycophants. Aitizaz or Khosa long winded legalise do little to undo the mountain of evidence against them(RPP,OGDCL,PPVL,Hajj Scam, Ephedrine Scam,Fertilizer Scam, Railway Parts Scam) The Fear is palpable in PPP camp. Ejaz has misread the situation.
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@elementary:
Nothing. No one has been convicted yet in a free and fair trial.
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@elementary:
“Having seen PPP supproters lame excuses,and dogged determination to defend one of the most corrupt duo of PM and President Pakistan has ever seen,one wonders perhaps we deserve to be in the mess we are in. “
.
Who voted in such brilliant persons?
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@Umer:
And when they get convicted ,SC has not been impartial.
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Why can’t the PM be given the benefit of ‘Doctrine of Necessity’?
Just wondering.
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@elementary:
“Having seen PPP supproters lame excuses,and dogged determination to defend one of the most corrupt duo of PM and President Pakistan has ever seen,one wonders perhaps we deserve to be in the mess we are in. “
And which leader of Pakistan is not corrupt? Nawaz Sharif or his brother? The PCO judges who sit in judgement who have reduced the supreme court to a trial court? The judges who pardoned themselves for violating an oath they took on the Quran to protect the constitution and then not even a by your leave decide that they should remain as supreme? Imran Khan who is terrified of the jihadist and does not dare even think of saying anything against DPC goons? Imran Khan who is the beneficiary of massive public land grants from the generals and feels entitled to them? Nawaz had Zardari jailed and tortured, and could not prove a thing against Zardari. How many years did Zardari stay in the prison on trumped up charges? How many days did the Sharif brothers last before they sold themselves and run to Saudi Arabia? We are in a mess because we are not pragmatic but each and every corrupt politician and general wraps themselves as pure and pristine. All are hypocrites. At least Zardari does not get on the stage and make a mockery of Salat to show how Islamically pure he is as the new champion Captaan Sahib. Recommend
@Umer: what about the one who is actually convicted.
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@Mirza:
I hape Mr. Ejaz reads these comment without any prejudice and being in favour to judiciary and ISI alliance (Proved in Memogate Scandal…. Haqani in talk show “Leken”). One wiches that the contributors to the Express Tribune show a balance and indipendent approach in their writing.
A Peshawary
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@ UMER
The point of the argument is that our PM is convicted for not writing a letter to the swiss authorities to reopen the swiss cases.
He is a disgrace on the image of Pakistan. No respect in international community.
Convicted by court for CONTEMPT OF COURT not for the so called UPHOLDING THE CONSTITUTION.
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