Pakistan Today Sunday 24th October 2010
Day of judgment
Humayun Gauhar
I read in an article the other day that Robert Hitchins said: "The death of democracy is not likely to be an assassination from ambush. It will be a slow extinction from apathy, indifference, and undernourishment." Apathy, indifference, and undernourishment we have in abundance. I would add exploitation and predation.
What we in Pakistan call "the democratic process" has indeed been ambushed many times, both by civilians masquerading as democrats and generals masquerading as democracy-giving reformers. None has tried straight assassination yet – "If anyone utters the word democracy his tongue will be pulled out" – as has often happened in Latin America and Africa under the god fatherly eye of the United States.
In last Sunday's Pakistan Today I said in my article 'Deep State' that no matter how bad it gets the system should be allowed to either iron out its wrinkles and become workable or come to its logical end by itself. A natural death is better than martyrdom, for martyrs have a nasty habit of not dying, particularly those that should not be considered martyrs. For this it is important for all three branches of government and their institutions to work in tandem within their parameters and not trespass or clash with one another.
Last Thursday dawned with great tension and foreboding: the Supreme Court was to hand down judgment on the 18th constitutional amendment, especially the controversial Article 175A pertaining to the appointment of judges to the superior courts. If they struck down all or part of the amendment a destructive legislature-judiciary clash would ensue. Thus it came as a welcome surprise when the Court passed an interim order referring 175A back to parliament for "reconsideration" by the last week of January, when it would (hopefully) hand down its judgment. The majority of the small minority that is concerned with such matters was hoping that it to be struck down, the system would collapse leading to some sort of extra constitutional intervention. Instead, maturity prevailed – for once.
Before we start celebrating we should remember that things could still go wrong. The legislature might decide to ignore the order altogether. Or it might make changes that still don't suit the judges. Then, a two-thirds majority would again be required in both houses of parliament to pass the changes, because the 18th amendment is already part of the constitution. Can they muster such a large majority again? The best would be to make the changes in unofficial consultation with the Supreme Court, however odious that might be to some. Pakistan is the most important. The legislature's concern that 'independence' should not come to mean 'unchecked' has merit. How can you have a judiciary that is a law unto itself, which appoints the chief justices and judges itself, promotes and transfers them itself, and be judges in their own cause without any oversight by parliament, which has the "upper hand"?
Though the prime minister welcomed the SC order, there is news that the presidency is having doubts. One loudmouthed minister close to the president said on television that they might open the "Pandora's Box". That sounds grave, for it could only mean taking the executive order re-appointing the sacked judges to parliament to ratify or reject, which needs only a simple majority. That would mean war. Everybody would be the losers, including the replacements. Pakistan would be the biggest loser.
Even if this issue gets sorted out amicably, there are other points of contention that hang fire. There is that wretched letter that the Supreme Court wants the government to write to the Swiss authorities withdrawing the earlier letter written to it by a former attorney general (saying that the Bhutto-Zardari Combine had been pardoned) because it was written without lawful authority. The ordinance pardoning them had been struck down. The Supreme Court is not asking that the Swiss government be requested to reopen the corruption case against President Zardari, for he has immunity that the Swiss also recognize. If the hope is that after he ceases to be president and his immunity lapses the case would reopen, it's a pipedream. After the lapse of so much time the case too would lapse. If they are so keen to try Zardari, why don't they try him themselves rather than making us go through the ignominy of asking a foreign government to do so?
We don't tire of hearing phrases like the "basic structure" and the "spirit" of the constitution. We conveniently forget that Pakistan is constitutionally an Islamic state in which Islam is the official religion and no law can be made that is repugnant to the Quran and Sunnah. We forget it perhaps because calling Pakistan an Islamic republic was a convenience itself, an expediency. Like it or not, so long as Pakistan is an Islamic state Islam and only Islam has to be the spirit of the constitution and its basic structure has to be based on it. The basic structure according to the petitioners given in the Supreme Court's order is ridiculous because it is full of contradictions. I could blow many holes in it, but to give just one example, how can they have the gall to say, "Democracy blended with Islam." For one, it is meaningless – Islam is not a tea that needs blending. Second, democracy the creed is inherent in Islam. It is a complete and final way of life and doesn't need to be "blended" with anything. What has to be seen is whether the system – repeat the system – of democracy that we have adopted, the Westminster parliamentary style, is in consonance with the Islamic concept of democracy. It is not, for it perpetuates the pro-feudal, pro-ruling class, anti-people status quo by throwing up the worst amongst us as leaders, not the best, as Islam requires.
Now coming to immunity, my understanding is that there is no immunity from the law for anyone no matter what their station in life: two of our greatest caliphs, Omar (RA) and Ali (RA), presented themselves before the courts when the judges required them to. Why does the Supreme Court not strike down the immunity clause because it is ultra vires of Islam and therefore of the constitution of an Islamic republic? Problem solved, no? Simple but not simplistic.
humayun.gauhar@gmail.com
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