Daily Times

A few readers have objected to my use of the term tamasha for the Panama papers hullaballoo. They felt that I was being too unfair to an issue of great public importance that involved abuse of power for personal gain. Be that as it may, and I certainly do not endorse any abuse of power under any circumstances, I feel very strongly that the idea of separation of powers makes the exercise of the judicial branch sitting in judgment over the executive branch wrong.

If there has to be accountability of the prime minister, it should happen through the Parliament. For the Supreme Court of Pakistan, the question of the qualification of the prime minister should be a non-justiciable question.

Now I understand that many will object to this idea as being preposterous. After all who is going to hold the chief executive accountable if not the courts? But that is precisely where the problem is. It is not the responsibility of the courts to save the people from their own mistakes. The courts ought not to do so given that the judiciary itself is an unelected institution and the will of one or three or 17 judges is not necessarily better than the general will of the people. People with dubious corruption allegations against them should just be weeded out at the scrutiny stage before the elections. This scrutiny should not come after the election of the prime minister. It lessens the prestige of the office and weakens the very idea of a parliamentary democracy that we aspire to be.

As for accountability, what about the accountability of the judiciary itself? There are two references pending against two different judges of one high court. When are they going to be brought to justice by an independent and self-respecting judiciary? Then you have a high court bar association threatening a mass movement against the elected government. One would not want to conjecture how many members of that association pay their taxes fairly and, therefore, are sadiq and ameen. Let us not allow that to stop us from working ourselves into a frenzy of self-righteous outrage. In my humble opinion, accountability must start from the ground up. Once the society is clean, it will elect clean people.

This is why we should give Mr Nawaz Sharif another chance. Let us stipulate that behind the Sharif fortune there is a crime. Let us stipulate that PMLN has an unsavoury past. After all – other than abuse of power to enrich themselves – PMLN leaders are also known for being initiated into politics by a military dictator. General Ziaul Haq was the main benefactor and mentor of Mr Sharif in 1980s. We also know that Mr Sharif received payments from the Inter-Services Intelligence (ISI) in the 1990s to create the anti-Benazir Bhutto bloc. That is also corruption. We know that in 1999 the same prime minister was seized with the desire to become the Ameerul Momineen in the country. But we also know that Mr Sharif has turned a corner with his latest government. Can anyone deny that PML-N’s current tenure has been largely scandal free? Could it be that he has turned a corner. If so, not giving him an opportunity to rectify some of the wrongs he himself was guilty of earlier would be criminal for Pakistan, which can benefit from a reformed statesman. So let us give him an opportunity. At the very least let us not make a martyr out of him by dismissing him before his tenure is over. If Mr Sharif is a bad ruler, he will not stay in power for long. This is the good thing about democracy – it weeds out those who are unworthy of high offices.

As things stand, we are less than a year away from elections. Let all sides put their best foot forward for the elections. A second full-cycle of democracy would mean yet another baby step out of the ‘hybrid system’ of civilian and military oligarchy that exists in this country. It would help if our military men bothered reading the Constitution whose protection is their solemn duty under the oath they swear to on gaining commission in the Armed Forces. Article 243 (1) of the Constitution says in no uncertain terms: “The Federal Government shall have control and command of the Armed Forces.” Legally, there are no “national interest” exclusions for this command. The legal status of the actions of the Armed Forces is squarely resting in the legitimacy of this chain of command. The Constitution does not define ‘high treason’ as anything other than subversion of the Constitution. The subversion of the constitutional process is high treason. There is no other way one becomes a traitor.

It stands to reason, therefore, that national interest is subject to the viability and continuation of the constitutional order. There is no other national interest that any Pakistani, who wishes to see his or her country as a successful democracy, countenance but the national interest that is the perpetuation of civilian constitutional rule in the country. This is what democracy means. This is what we must continue to fight for. If this means tolerating a few unsavoury characters along the way, it is not a sacrifice that we should shy away from.

The writer is a practising lawyer. He blogs at hhtp://globallegalforum.blogspot.com and his twitter handle is @therealylh