Ill Blows the Wind

Supreme Court is writing a new history of this country, where lawyers movement, restoration was storming of Bastille.

“If Pakistan could have come into existence on the 27th of Ramazan, if the conquest of Makkah and the Battle of Badr could take place during the month of Ramazan, do you propose to tell us that the government is unable to conduct a mere presidential election on the 27th of the Holy Month? Shirking the responsibility of statecraft is that what religion teaches us? What would have the pious caliphs done? By your logic, the entire country should be shut during Ramazan. Is this not an indication that the government and Parliament have failed completely? Pity the nation that has rulers like you — Hafiz and Rumi”; petition dismissed and the hammer comes down to thundering applause, blinding tickers and hyperventilating news anchors.

Well none of that really happened. The PML -N petitioned the Supreme Court to have the presidential election date moved from August 6th to July 30th and so it was done, on the same day, without notices being issued to the PTI and PPP candidates. The reasoning given in the petition and accepted by the Court was that since the elections were being held on the 27th of Ramazan, legislators would be busy in itikaf, umrah and other religious obligations. However, all of that could have happened, had circumstances and actors involved been different. The presidential election admittedly never had much suspense to it, the PML -N by and large has the numbers and so what’s the fuss about? It is about principles, both of natural justice and institutional authority.

The Supreme Court order is one of the singularly most astonishing judgments of recent years (mind you, in an extremely strong field). My Lord, the Chief Justice did not feel the need to even hear the point of view of the PPP and PTI candidates. My Lord could have, perhaps, saved all of us the trouble and appointed the PML-N nominee as the president. In the process, a unique and efficient precedent could be set that all candidates not likely to win should be declared ineligible before the election. One can be certain that the Supreme Court was aware of the principle of natural justice audi alteram partem, basically hearing the other parties as well. Why they chose to create an exemption in this case is not obvious. It is not for humble mortals like us to speculate on the deliberations of the mighty. Yet, looking at the judgment, there was not much deliberation, at least no real reasons were given. Even the pretense of objectivity is wearing off.

However, the major casualty of this decision is the Election Commission of Pakistan (ECP). The ailing and failing ECP is now dead. There is no Election Commission in Pakistan. The pretending institution is just a club of eminent, upright senior citizens. In any event, the ECP should now be dissolved and all subsequent election schedules and modalities decided by My Lords in the record speed justice fashion. The ECP had abdicated all its authority to the Supreme Court before the general elections and if this is how it is to be, then there should be no reason for its existence and burden of state exchequer.

The ECP is not the first victim of the Supreme Court’s mercy killing. There used to be a body called the Supreme Judicial Council (SJC). The SJC was the only body empowered to hold judges of the Superior Judiciary accountable and to remove them in the very rare case. The constitutional provision for the SJC is still there but it is defunct now. It died the day My Lords decided to send around one hundred judges of the superior courts home without resort to the SJC.

The Court, in the past five years, had effectively assumed complete control over all federal investigating agencies, removing chairman NAB and directing particular FIA officers to be appointed to particular cases, etc. Now, we wait with nervous anticipation for the implementation proceedings for the Asghar Khan case to begin along the lines of the NRO case with day to day hearings, explosive orders and all.

My Lords do not like the politicians much, but they like some even less than others. Not on whimsical grounds though, camaraderie of the lawyers’ movement, etc. That will now have to be put aside. The Supreme Court is writing (or perhaps, rewriting) a new history of this country, where the lawyers movement and restoration was the storming of the Bastille, the big bang. We were a bunch of savages living in serfdom before the dawn of enlightenment. Those of us who cautioned mildly about some intended and unintended consequences during the movement were, of course, agents secretly receiving payments from the Commando. Well, let bygones be bygones. What now? Mian Sahib did a considerable amount of his politics through the Court for the past five years and the courts were not ‘harsh’ on him. The PML-N supported the Court through all the tough time and on prime time, even during the conspiracy to malign Dr Arsalan Iftikhar (whose case was another seminal example of lightening justice). There might not be active complicity; just a convergence of preferences.

Robert Bolt’s play on the life of Sir Thomas More, “A Man for All Seasons”, remains very appropriate to us. And one particular scene (which I have also quoted previously) beautifully makes the case for due process. While discussing if the devil should be given the benefit of the doubt, Thomas More asks William Roper, “What would you do? Cut a great road through the law to get after the Devil?” Roper replies, “I’d cut down every law in England to do that!” More responds by, “Oh? And when the last law was down, and the Devil turned round on you — where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast — and if you cut them down — do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.”

My Lords and Mian Sahib, the laws are being cut down one at a time and may all be flat soon at the present rate. Mind you, it is not only the laws that are being cut though. Shias were cut down in Kurram again as these lines are written and again the State watches unmoved. Would you gentlemen, would all of us be able to stand upright in the winds that would blow then?

Published in The Express Tribune, July 28^th, 2013.

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