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The ‘ultimate’ debate

Ousted prime minister Mian Nawaz Sharif knows, as do all those who have been following the Panama Papers corruption case proceedings, that he and his children have no creditable defence. Rather than accept the legal outcome he has been maligning the juridical system, telling people at public rallies the five Supreme Court judges who disqualified him had “violated the sanctity of your votes.” He wants us, the people, to believe an elected leader is unaccountable to laws of the land.

In fact, he has been touting the recent success of his party’s candidate in a Lodhran by-election against the opposition PTI’s as proof that his narrative is resonating with the people. Indeed, his party won by a large margin against its main rival. Those familiar with the area’s politics though point out that it had more to do with local dynamics than the larger issue of corruption dominating the national scene. In any event, only the upcoming general elections will tell if the people are buying Nawaz Sharif and company’s narrative. The issue of concern at this point in time is his policy of confrontation towards the judiciary.

Mian Sahib is not known as a well-read person. Most probably the last book he read was during his student days. But as three-time prime minister of this country he surely has read through some of the important pages of the Constitution, including the one that contains a provision forbidding bringing the judiciary into disrepute. He is also expected to know that there is something called rule of law- one of the core values of any functioning democracy- under which all citizens, elected or unelected, are equal before law. Then there is the question of moral responsibility. In established democracies, leaders step down of their own volition for something as innocuous- by our standards- as a policy failure. Just last June, former British prime minister David Cameron resigned because the people had voted against his policy decision to stay within the European Union, saying “the British people made a different decision to take a different path. As such I think the country requires fresh leadership to take it in this direction.” It is reflection on the state of democracy in this country that our former prime minster refuses to call it quits even after ouster on a financial misconduct charge, and is offering unashamed resistance.

He obviously thinks of himself as a pre-modern king who is not only above law, but can change at will the laws unsuited to him. Back in 1992, for instance, he got Parliament to pass the Economic Reforms Act that became the main conduit for money laundering, and most likely the source of foreign currency with which the controversial London properties were bought. After his disqualification last year, he used his parliamentary majority to amend the law that prevented a convicted person from holding a party office, making a comeback as the PML-N president. The law has since been challenged in the apex court, and struck down. Having sensed what was coming his men have been responding aggressively to the judges remarks during the case proceedings, picking on a hypothetical question chief justice Saqib Nisar asked Mian sahib’s counsel: “can a dacoit and ring leader of a drug mafia or a person involved in serious crimes also become the leader of a political party?”

Speaking in the National Assembly on Monday, Prime Minister Shahid Khaqan Abbasi railed against judicial activism in general and the judges in particular for hearing the petitions challenging the amendment to the election law and making unsympathetic observations. The Constitution, he asserted, defines the powers and jurisdiction of all institutions that they must perform staying within their parameters, going on to call for an ‘ultimate’ debate to decide once for all if members of Parliament have the right to legislate or they have to seek prior approval for it. Since he mentioned the Constitution in reference to court proceedings regarding the political parties law, he should know that its Article 68 says “no discussion shall take place in Majlis-e-Shoora (Parliament) with respect to the conduct of any judge of the Supreme Court or a High Court in the discharge of his duties.” The judges’ remarks over which Abbasi and others in the ruling party have been fuming were made while hearing a case, ie, during the performance of their duties.

As for who has the final say in legislation, it can’t be the subject of a serious conversation. It, of course, is the function of Parliament to make laws. Nonetheless, as the guardian of the constitution judiciary holds the sole prerogative to interpret it, and in most democracies can also strike down a law if found to be in conflict with the fundamental principles of constitution. The debate PM Abbasi wanted in Parliament did not happen, but it goes on outside. Although he said he was not bound to give any explanation to any statement, the CJ clearly was responding to the PM and colleagues’ criticism when he said “we cannot ask Parliament to make a particular law, but the court can examine the same,” also iterating “Parliament is a supreme body, but the Constitution is even higher than this institution.” Going by this ‘explanation’ the Constitution rather than Parliament is supreme, all the more so if it is to be accepted that the highest legislative forum cannot make laws that go against the spirit of the Constitution. The ‘ultimate’ debate needs to settle this question. Meanwhile, Nawaz Sharif stays on a destructive path, lashing out against the institutions as part of a well thought-out strategy for political survival. In so doing he has unwittingly triggered a constructive conversation about the respective roles of state institutions and the independence of various accountability organizations.

Saida Fazal, "The ‘ultimate’ debate," Business Recorder. 2018-02-22.
Keywords: Panama Papers , Judicial activism , Political parties , Political survival , Constitution , Independence , Mian Nawaz , David Cameron Sharif , PTI , PMLN