Daily Times

The JIT is going to present its report to the Supreme Court. Depending on the contents of the report, the Supreme Court once again will sit in judgment on yet another elected Prime Minister of the country. There is no cavil with the proposition that corruption at all levels must be combatted forcefully but there is something very disturbing in the way this matter has been dealt with.

To begin with, there was the jurisdiction question. Article 63(2) of the Constitution states: “If any question arises whether a member of the Majlis-e-Shoora (Parliament) has become disqualified from being a member, the Speaker or, as the case may be, the Chairman shall, unless he decides that no such question has arisen, refer the question to the Election Commission within thirty days and if he fail to do so within the aforesaid period it shall be deemed to have been referred to the Election Commission.” It is the Election Commission that is vested with the proper jurisdiction of determining the question of disqualification. Could the issue have been raised under Article 184(3) of the Constitution? The Supreme Court obviously decided it could but it must be remembered that the issue was given this colour because of a political necessity — the fear that PTI would start another Dharna in Islamabad.

Pakistan falls on the lower rung of the ‘hybrid system’ on the democracy index, where unelected institutions very often infringe on the domain of the elected institutions

Whatever the reason, what we have done is put the Supreme Court smack in the middle of our political disputes. This means that Supreme Court is likely to be the safety valve that Article 58(2) b used to be in the past. Is that a good thing? The sordid history of Article 58(2) b as a safety valve landed us with unstable governments through out the 1990s. Will Supreme Court’s role be any better in the years to come? I do not feel confident that in the long run this is a good thing.

The Supreme Court’s role (and that of the superior judiciary in general) in the larger scheme of things is that of a guardian of the fundamental rights of the people of Pakistan as well as the constitution. Yet, with all due respect, the apex court’s performance on that count has been less than stellar. In the Imrana Tiwana Case, for example, the Supreme Court overturned the Lahore High Court’s judgment on the issue of local governments and their authority being clipped by provincial governments. The Lahore High Court had struck down sections of the LDA Act on grounds of Article 140-A of the Constitution. The Supreme Court accepted appeals against this judgment and said the Lahore High Court could not. In doing so it prescribed a rigid test for a constitutional challenge to enacted provisions of law. In other words the Supreme Court seemed to argue that it is not its job to save the people from their choices even when such choices blatantly violate the Constitution. Instead the instinct is always to save a law, even a bad law, to the greatest possible extent.

Fair enough. Yet when it comes to the elected Prime Minister of Pakistan, the Supreme Court is ready to intervene and determine whether a person elected by a plurality of the votes polled is in fact even eligible to hold office even in the presence of an alternate remedy expressly provided by the Constitution i.e. Election Commission of Pakistan. This shows that the Supreme Court can change its mind from case to case as it has clearly done in the Panama Case.

The result is that Pakistan’s claim to being a democracy is not taken seriously by anyone in the world. Instead Pakistan falls on the lower rung of the “hybrid system” on the democracy index, where unelected institutions very often infringe on the domain of the elected institutions. However they do so not on the basis of any time honoured constitutional principle but rather political expediency.

Unlike the government I do not begrudge Imran Khan or PTI for this state of affairs. Politics is about power and PTI is doing whatever necessary to get into power, presumably because it feels that it can do a better job running the country. That might be true but should not the institutions of the state take a wider view and discount for political ambitions, however well meaning, when taking momentous decisions. We are after all already in the election year. By all counts the elections are less than 10 months away. What would changing the Prime Minister at this late a stage achieve? Disqualifying Nawaz Sharif will only make him a political martyr. I doubt that it would serve PTI’s interests to go into fresh elections against a rejuvenated PML-N playing the victim card. A disqualified Nawaz Sharif would be infinitely more dangerous.

The problem with Pakistan’s democracy has always been its martyrs created by the country’s deep state. We would have taken a very different course had the governments of Nazimuddin and Suharwardy been allowed to complete their terms. Similarly if Zulfikar Ali Bhutto been allowed to complete his term instead of being deposed and then executed through a largely farcical trial our problems would have been greatly mitigated. Later if Benazir Bhutto and Nawaz Sharif been allowed to complete their terms during the 1990s, Pakistan would probably have a next generation of leaders in power today. Instead we make martyrs out of people and then the same names keep returning. We complain that all we have known over the last 30 years are the Sharifs and Bhuttos (or Zardari), but that is because we never let them run their course and be booted out of power by the people, who ought to be the only check and safeguard in a democracy. So let the people’s court be the ultimate arbiters of the future of the country.

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

Published in Daily Times, July 10^th , 2017.