Should the Heavens fall?

Somewhere along hysteria in public discourse, real issue of writing to Swiss courts, President's immunity was lost.

I am sure that some of you would have noticed the absurdity of the signs which one sometimes encounters on office desks and coffee shop counters saying, “I will be back in five minutes”. The sign becomes dated and untrue almost as soon as it is put up. The Prime Minister was recently sentenced to a term, which was to last till the rising of the court, and the court almost immediately rose after handing down the “historic verdict”. We are told by those who are particular about these things that the intervening time was approximately 30 seconds; in any event the sentence passed too quickly for the formation of a considered opinion, however one can be sure that there will be no dearth of considered and unconsidered views in the days to come.

One of the most interesting things about our periodic landmark judgments is the following aftermath, which reveals that most of our television anchors, retired army officers and politicians are closet legal geniuses, and feel in no way constrained to make recourse to the ordinary practice of reading the judgment or the relevant law. This is the only explanation for the almost unanimous opinion that the Prime Minister now stands disqualified. It is, perhaps, best to suspend judgment on the matter till the issuance of the detailed verdict. Yet, it might be of assistance to remind ourselves that there is an appeal process before a larger bench, which surely shall be shortly set in motion. A perusal of the short order discloses that the intention might not be to immediately disqualify the Prime Minister since while referring to Article 63 (1) (g) of the Constitution the phrase used in the short order is “likely to entail serious consequences”. The said article articulates the disqualification of a member of parliament if they are convicted of propagating any opinion or acting in a way so as to bring ridicule to the armed forces or the judiciary.

It is open to debate if that was the initial charge on the Prime Minister or not. In any event, the actual disqualification will take place through the Speaker of the National Assembly who may send the issue to the election commission to make the final determination. I do not wish to reproduce here the arguments of the learned senior counsel for the Prime Minister or the Court since both of them are capable of doing that for themselves, and do so very eloquently. Yet some sober reflection along with basic research might be helpful to the excited commentators and it may even have a dampening effect on the wild applause coming from both camps.

However, somewhere along the course of the hysteria in public discourse the real issue has been lost. At the risk of belabouring the already known, the issue in contention was the writing or non-writing of a letter to the Swiss authorities, and at a core level the Prime Minister’s refusal stems from the opinion that the President has immunity during his term in the office. It is the sole prerogative of the courts to interpret the Constitution, and the President’s immunity can theoretically be made less absolute. Yet, the Court has not done so; actually the Court has restrained itself from giving any direct observations on the matter at all. The cynic might say that it is for the reason that it is far more difficult and perhaps time consuming to neuter presidential immunity in view of the plain language of Article 248 of the Constitution as compared with the relatively easy task of sentencing the Prime Minister for contempt.

Let none of this obfuscate a primary principle, namely that once an order is passed by the Court it becomes binding on everyone it is addressed to, the legal flaws of the judgment is a ground for an appeal not refusal to comply. However, it might also be useful to remind ourselves that the courts draw their legitimacy and authority from the Constitution and equally significantly from a perception of fairness. The incumbent Prime Minister is perhaps fortunate in comparison to the PM who was sentenced for hijacking a plane and certainly luckier than the one who was hanged. Now compare this to the flagrant disregard of many Court pronouncements by the men in khakis, most recently the disregard of a Court Order passed on November 3, 2007 emergency which was “flouted” by the then corps commanders, some of them still in Pakistan and in service and thriving. Shakespeare’s words in Measure for Measure come to mind, “The law hath not been dead, though it hath slept.” I agree that this cannot be the basis of the Prime Minister’s defence and two wrongs do not make a right etc., however, if the law of contempt is applied across the board, it certainly will be more effective and make it harder for everyone to disobey.

The terms ‘independence’ and ‘impartiality’ are often used interchangeably as if it was a distinction without much of a difference. One could humbly speculate that in cases linked to the ‘doctrine of necessity’ and to legitimacy granting to military takeovers, some judges were driven by good faith and might have been independent; however, they certainly were not impartial. An uncritically repeated phrase “let justice be done though the heaven falls”, is quite silly since there is very little justice in total destruction. Let us not deceive ourselves by closing our eyes to the context and the implications for our nascent democracy. I don’t think the Prime Minister is a martyr in any cause greater than himself, and perhaps he should resign, at least, till the final resolution of the matter, and unconditionally obey whatever the final outcome is. However, one would expect the opposition parties, particularly Mian Nawaz Sharif, to be more cautious given his prior experience with similar matters. Given Mian sahib’s fondness for poetry, one may take the liberty of gently reminding him of these lines of Ghalib, “Mein ne Majnoon pe larakpan mein Asad, Sang uthaya tau sar yaad aya.” (When in my youth I threw a stone at Majnoon, I was reminded of my own doings).

Published in The Express Tribune, April 29^th, 2012.