The NRO implementation and the prime minister’s contempt cases have highlighted that we are still light year away from internalising and abiding by rule of law. The prime minister insists that he respects the court. But his evidence is not compliance with court orders, but his submission before the ‘majesty of law’ when summoned by the court. Can responding to summons be presented as a concession to the court in any civilised democracy? In criticising the judicial process and defending the PPP-led government’s actions, proponents of the ruling regime raise arguments about the history of our institutions, rule of law, democracy and national honour that need to be analysed.
First is the argument about history. The Zardari disciples argue that if the president has a murky past, so does everyone else in this country including the now-cleansed judges who swore an oath under the PCO of 2000. There are two issues with the comparison. The lame one is that the PCO of 2000 was provided legal cover under the 17th Amendment by a parliament that the PPP was a part of. But while this technical argument is legally correct, there can be no moral or ethical defence for swearing an oath in breach of the Constitution. The more important distinction is that while others, including the judges, have acknowledged past mistakes, vowed to correct them, and have taken steps exhibiting their urge for reform, the Zardari-Gilani duo is steadfast in its old rotten ways.
It is true that our state and our nation have made mistakes since the inception of this country. Thus, anyone who has been in a position of authority up till now is culpable to some extent. Unless you mow down everyone over the age of 40 who has enjoyed public office, reform will partly be driven by the resolve of leaders of our society to change themselves. In 2007 the judges stood up to a dictator while he was still in power and suffered the consequences of their decision. After their restoration they acknowledged the past mistakes of the judiciary in the PCO judges’ case, declared that they are an institution of limited authority incapable of endorsing unconstitutional acts of dictators and have consequently built a bulwark against the derailment of democracy.
Far from seeking redemption, the Zardari-led PPP has been all about audacious pursuit and defence of its bad habits. The NRO is an issue in 2012 partly because it was found unconstitutional in 2009 and the PPP refuses to abide by the decision, but equally because the conduct of the PPP regime since 2008 has revived bitter memories of the 1990s and Mr 10 per cent (even though the prime minister seems to have assumed the role more vociferously this time). It is the corruption and incompetence of the PPP-led regime in the present tenure that has reconnected Zardari’s past with his present and his future. Had Zardari and other PPP leaders established through conduct that they have learnt their lessons and are making amends, the Swiss cases might just have remained a thing of the past.
The second argument, premised on grounds of consistency, is that while politicians are meted out justice by courts, the generals are not. Again, there can be no justification for a court system that dispenses selective justice. But there are at least two issues with this argument. One, it is the entrenched principle that he who claims equity must have clean hands. Civil society and all citizens of Pakistan have a right to ask if our courts are excessively indulgent when it comes to the sins of the khakis. But the PPP is in-charge of the federal government and in control of the parliament. How can the ruling regime then point fingers if it has an understanding with the army to not prosecute its erstwhile head?
And two, the fact that the courts have a go-slow policy vis-a-vis the khakis is a critique of the judiciary and an argument in favour of subjecting the khakis to rule of law, and not one in favor of letting of the Zardari-Gillani duo off the hook. And now, with the fixation of the Asghar Khan case, the renewed vigour with which the Supreme Court and the Peshawar High Court are pursuing missing persons’ cases, and with the Lahore High Court asking tough questions of Shahbaz Sharif’s government, the judiciary seems to be paying heed to strictures on the apparent lack of even-handedness in adjudicating wrongdoings of our power elites in its entire spectrum.
Then the claim that emphasis on rule of law could undermine democracy and create an opportunity for khaki intervention is equally flimsy. The largest legal impediment to military adventurism (if there can ever be such a thing) today is the ruling of 17-members of the apex court stating that there is no room for military intervention in politics under our Constitution.
Despite all this, the PPP regime has done precious little to strengthen civilian control of the military. By ceding control of anything linked to Pakistan’s security policy to the khakis and conferring extensions and privileges on the general corps, the PPP has elected to invest in a transactional relationship with the generals.
The differences between the Zardari-Gilani duo and Kayani-Pasha led generals have not been over matters of principle: the GHQ attack, Abbottabad and Mehran base debacles; drone attacks and larger Pakistan-US relations; policy vis-a-vis Afghanistan and the Taliban; military operations in tribal areas; Balochistan; the missing persons’ case etc. They have been occasionally triggered by clash of egos or personal fear of individuals at the helm of the civil and military hierarchies.
But the tacit agreement seems intact that the civilian government will back the generals when they are caught with their pants down, and in turn the generals will continue to remind themselves that checking the corruption and incompetence of this civilian government isn’t their job. While no justification for military intervention can be fathomed, a thoroughly corrupt and incompetent civilian government incapable of passing dividends of representative governance to ordinary folk will always be a critical threat to democracy. What we need is behavioural change at the individual and collective level. We feel dishonoured over our prime minister being subjected to the law, but none over him earning a reputation that would put rogues to shame. We worry about Pakistan being humiliated in the comity of nations if our president ends up facing corruption proceedings in a foreign country, but none over electing someone with a sordid past. Is it not time to reconsider our notions of shame, honour and national interest to bring them in harmony with rule of law and universal conceptions of right and wrong?
Is it not time to stop picking sides blindly and instead start picking positions instead on grounds of principle irrespective of which side comes out the winner?
Published in The Express Tribune, February 5th, 2012.
COMMENTS (23)
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True Mr. Sattar but what do you have to say about the fact that the present CJ is himself a PCO!
PPP supported the Ayub khan and Musharraf ,why they are against zia ul haq .Now they are against CJ ,who is best since 1947 despite the fact whatever is inside Pakistan judiciary.
the tacit agreement seems intact that the civilian government will back the generals when they are caught with their pants down, and in turn the generals will continue to remind themselves that checking the corruption and incompetence of this civilian government isn’t their job. While no justification for military intervention can be fathomed, a thoroughly corrupt and incompetent civilian government incapable of passing dividends of representative governance to ordinary folk will always be a critical threat to democracy.
awesome ...Simply awesome!!!!!!!!!!!!!!!!!!!
@Mythical reality: Is it not time to stop picking sides blindly and instead start picking positions instead on grounds of principle irrespective of which side comes out the winner?
the writer really gave false arguments in favor of Judiciary. Zardari may be corrupt but not proved yet. CJP is a proven PCO judge. No validation even by the parliament can prove him innocent for his grave crimes to become PCO judge. He should resign and leave histenure to the next senior who has not taken oath as PCO judge in the past.
False arguments in favor of Judiciary. Zardari may be corrupt but not proved yet. CJP is a proven PCO judge. No validation even by the parliament can prove him innocent for his grave crimes to become PCO judge. He should resign and leave histenure to the next senior who has not taken oath as PCO judge in the past.
Pakistan's superior judiciary has shown itself to be deeply political and that is its problem.
“The more important distinction is that while others, including the judges, have acknowledged past mistakes, vowed to correct them, and have taken steps exhibiting their urge for reform, the Zardari-Gilani duo is steadfast in its old rotten ways".
Who gives that certificates? I also want one for me.
It is so simple. A dictator takes over, judges give him power to amend constitution and his gathered crooks provide constitutional cover to crooked judges!
But were not these judges working under dictators oath for 3 years before it was given co called constitutional cover. What do you think of a continous crime by a judge for years, who is supposed to be clean?
False arguments indeed. The PM should ask the SC to justify its demand to write the letter under the constiitution.
Prime Minister of Pakistan has to respect the court and to write the letter to the Swiss courts; asking them to unveil the veil of secrecy form the truth.
Sir, I dont think any judge who took oath under the PCO of 2000 ever apologised for it. In a tv interview, Justice Khalil ur Rehman Ramday even justified it.
......and I thought there could be nothing better than Ejaz Saroop.
thank you Babar Sattar...........this is so cathartic....i agree with every word !
@Hasan: "Further, minority governments, all over the world, are constantly removed from office. "
In any well-run democracy, a minority government would have to lose a motion of confidence in the parliament/congress to be removed from office. Gilani has not lost a motion of confidence. In fact a motion of no confidence has not even been presented against his government. Supreme court and army are not entitled to make such a decision.
The worthy writer has his own false arguments to countervail what he declares false arguments. :)
@Nadir: The PPP is a party that failed to receive a majority at the last election - it is a party that doesn't rule in its own right! Further, minority governments, all over the world, are constantly removed from office. Finally, countries rarely see, or put up with, the level of corruption and incompetence that we endure in Pakistani.
An excellent read! Spot on!
a thoroughly corrupt and incompetent civilian government incapable of passing dividends of representative governance to ordinary folk will always be a critical threat to democracy. How so? This argument can be made for any country, regardless of its economic, social or political stature. People are unsatisfied by the performance of many political leaders in many countries, but they dont throw the baby with the bath water.