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Judgment and after

There is reason to believe that as a result of the present judgment many, if not all, politicians in power will try to keep their affairs and accounts transparent

Judgment and after

Each party to the Panama Leaks case is hailing the Supreme Court judgment because it has not conceded what its adversary had prayed for. This leaves the combatants free to go on seeking new methods of overcoming their rivals.

If, in the process, the tussle between the Prime Minister’s camp and the opposition becomes intense, the need to examine the political implications of the judgment is likely to be bypassed. This will not be in the interest of nurturing a democratic polity, for it is necessary to pay due heed to the SC’s messages to the politicians and all those who are interested in their accountability.

Pakistan has a fairly long record of trials of holders of public offices for abuse of power. Khuhro and Mamdot were tried under the Public and Representative Offices (Disqualification) Act (PRODA). The Ayub regime tried Suhrawardy and others, who had declined to opt for voluntary retirement from politics.

The Zia regime hauled up a good number of politicians before special tribunals. But nearly all of these politicians had to face judicial or quasi-judicial trial after their removal from office. In a majority of cases, they had to answer the charges against them under martial law regulations. And, of course, prime ministers were sacked for contempt of court.

The Panama case is unique in the sense that a sitting prime minister’s conduct and his eligibility to hold office were scrutinised under the normal law, although the court has noted the special circumstances that justified a broader interpretation of Article 184 of the Constitution. And although the Prime Minister has survived in office he has not received a completely clean chit. To the people at large, this sounds like a welcome beginning of accountability of holders of high elective offices.

The debate as to whether a few warning shots fired at high-placed politicians can cure the state of Pakistan of the all-pervading corruption will continue for long. But there is reason to believe that as a result of the present judgment many, if not all, politicians in power will try to keep their affairs and accounts transparent and will not dismiss the possibility of accountability from their minds. This should be taken as a gain for politics, a move in the right direction.

Read also: The political fallout

Justice Asif Saeed Khosa has dwelt at length on the failure of the various institutions and agencies that could have taken up the allegations of wrongdoing by the federation’s chief executive, and declared: “the precedent to be set by this court through the present petitions should in fact be a warning to all those rulers who try to subjugate all the organs of power, enslave the institutions of accountability” and start boasting of their invincibility in the style of Marlowe’s Tamburlaine (or, one might have mentioned, in the manner of the Zalim (oppressor) in Faiz’s Three voices).

The Panama case is unique in the sense that a sitting prime minister’s conduct and his eligibility to hold office were scrutinised under the normal law, although the court has noted the special circumstances that justified a broader interpretation of Article 184 of the Constitution.

The matter highlighted here is one of the main diseases our political system suffers from. One of the first things not only ministers but many legislators do on stepping into their offices is to ask for their favourites to be posted as police chiefs in their districts. The story of the Nawab of Kalabagh’s request to revenue authorities to post a Naib Tehsildar of his choice in his home circle or for the appointment of “good” police officers there is well-known.

When Ghulam Mustafa Jatoi consulted the elders of his constituency on Ziaul Haq’s offer of prime ministership to him, the main argument in favour of acceptance was the power he would have to post DCs and SPs of his choice. And how a chief minister bamboozled Pervez Musharraf into restoring his power to change the provincial police chief is no secret either.

If, as a result of the present judgment, the tendency among the rulers to fill key posts in services with favourties and not on candidates’ merit, competence and independent-mindedness, could be curbed, the state of the administration could change for the better within a few years.

However, not all the political implications of the judgment are positive. The Prime Minister is now a marked duck, though not yet lame perhaps. His opponents are trying to wriggle out of their promises to fully accept the court’s verdict and are asking him to resign; something the court has not asked him to do. He is under pressure to buy support from wherever he can get it. He might make peace with religious vigilantism and forget the kind words he has been using for religious minorities; this is the price he may have to pay for retaining the support of the orthodox elements.

Read also: Editorial

In the sphere of external relations the choice of a rational policy towards Iran, India; and the United States may become more difficult than before. Such safety-driven manoeuvres will not be in the national interest.

While the Prime Minister may not be under a legal obligation to resign immediately, the moral propriety’s demand for the opposite course cannot be disputed. Paradoxically enough, the judgment seems to have raised the threshold of permissible wrong-doing. If the charges against the PM the JIT is going to investigate do not oblige him to step down while the inquiry is held the message to all politicians is: forget about moral duty. The theory that no holder of office should quit his post until found guilty by a court — and the cases may continue for decades — will become stronger.

Unfortunately, Pakistan’s politics has been moving in this direction for quite some time. This preference for legalistic accountability as against moral reckoning has been used by a large number of politicians to cling to their elective offices.

Some justification for rejecting the principle of politicians’ duty to be morally above board in favour of legal findings against them was provided in the past by the establishment’s policy to liquidate its opponents by implicating them in cases of moral turpitude. There was a time when governments tried to destroy their opponents by recovering stolen buffaloes from their houses or instituting cases about long forgotten loans.

The feudal-minded rulers of Pakistan used to keep files on various politicians’ deviations from the law that could be used when these politicians threatened to move out of the establishment’s orbit. Now these functions are said to have been assumed by selected services but this may not be correct. Allah knows best.

What is clear is that in order to strengthen the rule of moral accountability the tradition of going for political rivals with foul means will have to be given up.

Justice Asif Saeed Khosa has invoked, among other things, Articles 62 and 63 of the Constitution to justify his direction for the PM’s disqualification. He has given reasons for reviewing his own opinion on the problems these articles pose. The main reason is that if there is a law on the statute books it will be used. One hopes the scope for further discussion on these articles has not ended. The question of determining whether a person is sadiq or amen may not be as difficult as meeting the other tests mentioned in Article 62.

These conditions stipulate that a candidate for election as a legislator must be a person of good character, who “is not commonly known as one who violates Islamic injunctions”, that “he has adequate knowledge of Islamic teachings and practises obligatory duties prescribed by Islam as well as abstains from major sins”, and that “he is sagacious, righteous and non-profligate”. How will these conditions be applied in practice? The criteria are not only problematic in regard to the vague and broad terms used but more so in terms of the havoc their subjective interpretations can cause.

If memory serves right, one of the first invocations of this article was the Returning Officer’s questions to Sheikh Rasheed, one of the petitioners in this case, many years ago, as to why he did not grow a beard or why he had not taken a wife?; or questions like that.

Further, with all the respect due to the Supreme Court it is submitted that courts’ attempts to trace the motivation for the demand for Pakistan or to define its ideology, or to find grundnorm in the Objectives Resolution will do the people more harm than good. These are political issues and may better be left to be decided by the people.

The inclusion of intelligence agencies in the Joint Investigation Team (JIT) proposed to probe the financial affairs of the PM and his sons has generated a controversy. The defence services have reacted angrily to certain points made in some circles. Perhaps this reaction is based on a misunderstanding. The issue is perhaps not doubts about intelligence personnel’s competence or integrity; the issue could be the incapacity of the team’s civilian members to examine the military viewpoint on merit. Further, at stake is the principle of keeping the military, as far as possible, away from civilian jobs. Thus, any exception taken to military officers’ use on what is a police job should be accepted as an advice in the interest of the defence forces themselves.

No country in the world has been able to disprove the dictum that the involvement of military and para-military officials with civilian duties over a long time undermines their service discipline, diverts them from their primary duty, and makes them vulnerable to the vices for which civilian personnel have all along been castigated. It is futile to presume that Pakistan can offer an exception to the rule.

I.A. Rehman

I. A. Rehman
The author is a senior columnist and Secretary General Human Rights Commission of Pakistan (HRCP).

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