Suppose for a moment that the Constitution of Pakistan is unanimously amended by the Parliament and an article is inserted saying, “from here on in all military takeovers/coups are declared illegal and treasonous and no court of law shall legitimise such a takeover…”. High-minded as it would be, one needs to be fantastically gullible or hopelessly optimistic to believe that mere tinkering with some legal provisions is all that is required for uninterrupted democratic governance. This may seem odd to you coming from someone who makes his sustenance on legalese but law is not really all that it is made out to be and especially not what our media would lead (or perhaps, like) you to believe. Firstly, a military coup is by definition extra-constitutional (or to quote the Supreme Court from the past meta/supra-constitutional) and hence, it will be merely another clause violated and on most occasions, the khakis are not overly concerned about constitutional nuance anyways. Secondly, the courts would read such an article as creatively as they desire since interpretation is, admittedly, their prerogative. However, the hypothetical article would serve some purpose insofar as it will make it more embarrassing for the courts and maybe even for the military adventurers, although they are generally immune from such petty sensibilities.
The new Contempt of Court law is going to be struck down as being unconstitutional. I think one can say this with a degree of certainty that the only significant question is “when” and not “if”. I can understand and might even go so far as to empathise with the desire of the Federal Government to amend the Contempt of Court law, yet the manner in which it is done is neither desirable nor sustainable. We live in a society where far too much deference is showed to far too many people and judges being the primary beneficiary. One of the most amusing yet egregious examples of a recent contempt of court is when an Honourable Judge sentenced a senior government official for looking at him inappropriately or aggressively. The use of temperate language to criticise the judiciary (or anyone for that matter) is a welcome move. However, the grant of extended immunity to everyone covered under Article 248(1) of the Constitution is not a solution and without a constitutional amendment is very likely to be held as being unconstitutional, and perhaps rightly so.
The ostensible self-righteous and muscular posturing and infringement into Parliament’s domain by the Court has to be resisted, but here is exactly how not to fight it. My primary objection is to the manner in which the law was passed in a matter of minutes without meaningful debate. To many neutral observers it does seem that the Supreme Court has crossed multiple red lines multiple times in the past four years and a free and frank debate inside and outside of the Parliament would have strengthened the moral case of the Federal Government. The problem of viewing this contest as being a formal legal one is that one of the parties to the conflict, namely the judiciary, also has the power to not only interpret the rules but determine the winner. To restate the problem, making laws to make the judiciary less powerful or active in the absence of major constitutional overhaul overlooks the fact that the judiciary will eventually interpret and apply those laws. The debate on precisely what constitutes ‘contempt of court’ and equally ‘contempt of parliament’ would have had value in itself and may even have generated consensus. Our democracy is end-driven, losing sight of the fact that public debate and the process is a virtue in itself.
For the time being, we rely on My Lords to be temperate even if they don’t like this government (which they clearly don’t) to show composure. I say this especially after the chief justice recently made what may come across as being purely political tough-minded speeches asserting his right to strike down laws and even talking of martyrdom. Temperate language and restrain cannot and should not be a one-way street.
Coming back to the trope of public debate, recently a private member bill was drafted by Senator Farahtullah Babar to be tabled in the Senate. The primary objective of the bill was to bring the ISI under direct civilian control and make it directly accountable to the Prime Minister and the Parliament. It seems that the bill is not going to be tabled now and if that is true, it most certainly is a shame. The bill should be tabled, debated and voted upon, if only to determine where everyone stands on the issue. The question of why the ISI chief cannot or should not be a civilian does not have an answer as obvious as some people believe. Glibly resorting to the fact that the acronym ISI stands for Inter-Services Intelligence and it has to be a service man (which brings to mind the even more unfathomable question of whether it ever could be a woman, I know we are light years away from that) is hardly a serious answer, when one considers that the name has hardly restrained the service men from manipulating elections and creating political parties. In any event, if that is your best argument then by all means change the name of the agency.
I am not naïve to the extent of believing that this bill would become a law and bring the spooks under the direct control of the democratic government, yet it was/is an ideal opportunity to have that debate. One would be curious to know how television anchors proclaiming apocalypse every evening would react, how Difa-e-Pakistan Council would respond, would the Supreme Court declare it unconstitutional, etc. Worst case scenario is that such an attempt will infuriate the armed forces so much that they will attempt a military take over. Well, firstly that is a natural hazard of employment for an elected government in Pakistan. Secondly, and more significantly, that will be a considerably more honourable and valiant departure than for some manufactured excuse over the holdup created over the likes of the Contempt of Court Bill.
Published in The Express Tribune, July 15th, 2012.
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