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A judicial salvation

Zafar Aziz Chaudary

The evolution of Imran Khan’s Pakistan Tehreek-e-Insaf (PTI) has always been regarded as a good augury for our country. From a struggling novice in politics a few years ago, Khan has proved himself as a galvanised crowd-puller, a game-changer and a potential threat to the existing political monolithic personalities. His past record in sports and his outstanding social and philanthropic work are sufficient guarantees that in politics too he would equally excel and work for the uplift of the masses. The ring of sincerity and honesty he carries about him is his first disarming weapon that makes the public repose confidence in his politics. They know that it is he who shall not make money out of his politics, or steal country’s resources and hide them abroad. Thus it is not surprising that Imran Khan has been able to win public approbation for his political goals. But a strange streak runs through Khan’s politics that is irresistible and overweening. Politics is essentially a game of patience and cool deliberation; Khan, on the other hand, is impetuous and un-relenting. At the successful conclusion of his Raiwind rally, he declared with much fanfare that he would next ‘lock down’ Islamabad. Now it was a patently wrong strategy to besiege the Capital by storming it with a million-strong crowd who had no knowledge of what they would do after gathering there, how long that ‘siege’ would continue, and what arrangements had been made for their interminable stay there. It amounted to political naivety not to be able to size up government’s ability to frustrate Khan’s aim of seizing the power ‘by force’. It was a folly to think that government would surrender in a day or two after this siege just as it had been a folly to think, a couple of years ago, that a few days’ dharna (sit-in) in front of the parliament building would force the government to capitulate.At that time too, Khan had to pack his dharna without attaining his political goals. Later, he had difficulty telling people what good that vigil of four months had done to his cause. Khan appears to have the tendency not to learn from his experiences, doing things in post-haste and mulling over his actions later. During the last week, Islamabad had been the hotbed of Pakistan’s current political turmoil. The political strife between the two main contenders for power became so ominous that it assumed the shape of a physical battle between parties where the one representing the state held the other in complete check from going about its declared intentions of locking up the Capital. Fortunately, the court that had all along been trying to keep itself clear of the on-going party politics, had to perforce intervene by deciding to play a referee in the national interest. It is always unfortunate that conditions should be created that result in calling upon the courts to intervene and adjudicate matters that do not strictly fall in their domain. The political question doctrine that is followed by all constitutional governments holds that some questions, in their nature, are fundamentally political, and not legal. And if a question is fundamentally political, then the courts will refuse to hear that case and leave that question to be settled by some other aspect of the political process. Under American precedents, also followed by our courts, whenever there is a lack of ‘judicially manageable standards’ to decide a case on merit, following the doctrine of political question the courts must abstain. But in the 20th century, due to constant failures of executive authority, judicial interference has become a global phenomenon. Now, excesses by the executive authority are everywhere subject to the checks of the judiciary.

The Supreme Court’s decision of October 1 has in one stroke put an end to a) the severe political crisis likely to turn bloody, b) restored the alarmingly deteriorating situation of law and order, and c) put at rest the bitter political acrimony between the two major political parties by making them agree to a course leading to a future political settlement. It was indeed a big achievement that made everyone happy.

It was not the first time that the judiciary came to the rescue of the executive authority from a near-collapse situation. There are many instances in the past when the judiciary upheld the constitution, confining the legislative and executive to their constitutional spheres, and providing relief to the oppressed and the under-privileged. There were also occasions where the judiciary legitimised executive arbitrariness and helped political adventurism. But by and large, Pakistan’s judiciary has through its several landmark judgments upheld the rule of law, and held in check executive excesses.

The present political strife had reached a stage where there was no hope of resolution of the grave issues at hand. For nearly several months, the formulation of terms of reference, which was the first step to holding of an independent inquiry, could not be settled. The ruling party deftly employed all tricks of trade to let the matter hang indefinitely. The next step — the appointment of a commission — would have been an even more awkward matter on which their agreement was not possible. Then the inquiry itself would have taken too long to decide the issues in an environment of petulant bickering. In the meantime, the holding of fresh general elections would have made any inquiry redundant and fruitless. Thus the order of the Supreme Court was the most appropriate and positive step that was hailed throughout the country. We feel that our judiciary is still the last hope of our people.

A prudent guess is that aside from the issue of proving the ownership of Panama off-shore accounts strictly in accordance with the provisions of our Evidence Act, a clear ruling can be given on all other issues including the ownership of Park Lane buildings and land etc., and the concomitant questions of tax evasions and other corrupt practices attached to that. There are many hurdles to ascertain proof of offshore accounts, the prominent being the element of secrecy attached to such accounts, and the fact that our Supreme Court has no jurisdiction to compel evidence from those companies.

It is also a matter of satisfaction that under the orders of the Supreme Court, the inquiry would proceed on a day-to-day basis and would conclude within a reasonable time. Some parties like the Awami National Party and Jamiat Ulema-e-Islam-Fazl that wanted the parliament to decide the matter were obviously trying to bail out the accused party. A parliament headed by the main accused could not be expected to impeach its own prime minister, and therefore, there was little scope for making the prime minister accountable to parliament. Thus in such a situation, taking recourse to the court was the only option available to the PTI. If justice had to be done in a matter involving the chief executive of the country, it was only possible through a judicial forum acting independently of the executive pressures.

We have unfortunately not yet evolved a culture of accountability where the chief executive of the country should feel himself answerable to the grave charges of corruption levelled at his family at an international forum. Now, hopefully, under judicial surveillance, the chaff would be separated from the grain.

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