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!

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 28^th, 2012.