Daily Times

The indignation against the Supreme Court (SC) verdict implicating the unanimously elected premier swept a larger part of the nation, roiled a majority of its parliamentarians and has also stirred several serious questions about the judicial domain, dynamics, and its relationship with the executive as well as parliament. Protests torching tyres and copies of the verdict and blocking roads erupted in several parts of the country, particularly in Sindh. A far more perilous prognosis, however, is feared if this simmering and sporadic ruffle is refueled by a long march initiated by the Pakistan Muslim League-Nawaz to oust the premier and enforce its pretentiously pious and pompous pronouncements to bolster the court with the instant implementation of its own interpretation of its verdict, the counter-marches towards Raiwind promised by the Pakistan People’s Party and the tsunami temblor to be triggered by the terribly thunderous ‘Impetuous’ Khan. The tenuous state of peace, industrial and commercial, pace and plight of workers already traumatised by terrorism, lack of energy and investment would be worsened even if a mere part of these tremors by the raging titans is actually unleashed. The circumstances thus evidently make it imperative that legal and constitutional conflicts and controversies should be settled by cool dispassionate debate and legislation in parliament and not through street turmoil and turbulence. Parliament in this case, rather than being turned into a theatre of the picadors, can be used to cool the tensions and assert its authority of the ultimate judicial review and arbitration and rewrite the course, conduct, criteria and confines of the superior courts.

The assertion of innate parliamentary authority and preeminence to steer through the unusual judicial spat has actually become unavoidable following this third judicial jab against the premier who happens to be the expression and embodiment of the will and aspirations of a nation. The first wrought the execution of Zulfiqar Ali Bhutto, the author of the first majority consensus constitution that still, at least apparently, binds the nation. The second sent Nawaz Sharif to a dungeon stuffed with snakes and scorpions on the concocted charges of contriving a conspiracy to hijack a sacked general’s plane. Both these assaults were evidently conducted under the covert authoritarian commands of army dictators, driven by their manifest mission to maul, malign and denigrate the elected institutions and incumbents. The present case, despite the inerasable impression pervading several circles about covert cues from the establishment to pillory the popular representatives, was different in the sense that the contempt of court charges against the premier were initiated by a bench that still comprised the judges who had been originally appointed by the dictator. Still, being restored after a protracted blood-soaked struggle, they were evidently expected to be fairer and friendlier to the constraints of the representative system. Yet the hopes pinned on the restored judiciary have been mostly dashed and even the elected national bodies and protagonists of the bar councils and associations have often resented the selectivity and lack of impartiality in its proceedings and preferences. This case also, as elaborated by many eminent jurists, smacks of a supra-constitutional spin. Superimposed upon this is the sad pernicious scourge of our superior judiciary that contrary to its unusual devotion and deference to dictators, the spurts of its excessive activism, as exhibited also by Justice Sajjad Ali Shah, unfortunately, actually plagued and paralysed almost every ephemeral and fledgling elected phase. These realities inherently required a vibrant parliamentary resolve to remedy their recurrence. But the present parliament, benumbed unfortunately by an inexplicable elixir of over-reconciliation, relegated its crucial responsibility to realign the superior judiciary to the inalienable democratic imperatives. Its acquiescence or rather submission to the changes in the 18th amendment suggested by the court actually further undermined its authority.

Parliament thus must retrieve its authority, redefine the judicial domain and fulfil its inherent obligation to the masses by mustering its best sagacity and skill, not only to recreate the judicial institutions entrusted to ensure fairer and affordable justice to the aggrieved but also to guarantee that the courts perform in accordance with the stipulations spelt out for them. In case they swerve from the path entrusted to them, exhibit excessive activism, a biased or unbalanced approach, there evidently has to be an ultimate resort for relief and remedy. For this purpose, the principle and practice of ultimate review and remission of any punishment awarded by any court in the land and the power to remove the aberrant by parliament and the executive have been enshrined in most democratic societies. This is evidently essential to make the judges answerable to the people for their conduct and performance as no institution in a democratic dispensation can be left without accountability. The impeachment of the superior judges by parliament has been explicitly instituted in most democratic countries like the US, Australia, Ireland and even in India. Our constitution, in this context, unfortunately excludes the masses from the process of accountability and ouster of superior judges, which has been almost entirely entrusted to the senior judicial fraternity through the supreme judicial council. The process essentially is a blatant denial of the rights of the electorate to review and redirect the conduct of every organ of state and its operatives.

This would evidently entail constitutional amendments that may not be feasible under the emotionally charged and polarised circumstances, complicated by innuendos of an earlier general election. Still, the ruling alliance in parliament can initiate some rudimentary prerequisites like resolving to create new superior courts with truly impeccable constitutional, legal and ethical credentials, untainted by any allegiance to dictatorship. The prime minister’s executive edict to restore the present judiciary was indeed a controversial legal palliative as it was neither endorsed by parliament nor did the premier have any authority to exonerate the incumbents, involved in a prolonged and inveterate abetment of the dictators already declared as usurpers. Parliament can establish a special non-partisan commission to probe the truth about the high profile scams as agreed in the charter of democracy devised by the two principal popular parties. It would not only defuse the soaring tension but would also save the Supreme Court from parsing perplexing political paradoxes, enabling it to concentrate on its behemoth backlog involving the ordinary litigants deprived of media harangue and limelight. The opposition must also revisit its strategy of tantrum, turmoil and tirades. Mr Sharif, in particular, notwithstanding his differences with the rulers, must end the irony of his invectives against General Musharraf and his maudlin infatuation with his judicial inheritance and fulfil his obligations to the electorate.

The writer is an academic and freelance columnist.habibpbu@yahoo.com