Opinion

Political and Judicial Adventurism
By Khalid A.
London, UK

People are crying for independence of the judiciary. While their sentiments are laudable, I feel, there are deeper issues that need a detached and dispassionate perception of the present political and judicial chaos. When the journalistic fog has lifted and political dust settled and when the nation comes out of daze, the verdict of the historian may be different from today's headlines.

In 1975, the Allahabad High Court in India ruled that Indira Gandhi's election was invalid because she had used a Government jeep and loudspeaker etc during her electioneering. In 2007, President Musharraf tried to remove CJP Iftikhar Chaudry because he had used Government transport and other facilities in an unauthorized way.

In both the above cases, the law was perhaps correctly applied. But in both the cases the application of law clashed with the concept of natural justice. Natural justice demands that if there is widespread violation of certain laws in a society, one cannot select one or two individuals and award extreme punishments to them for violation of those laws. In such cases, a warning would be more appropriate.

In both the above cases, executive and judicial adventurism led to political anarchy and emergency rule, in India as well as Pakistan.

There are profound lessons to be learnt from the two episodes. I am a great supporter of independence of judiciary. But judicial adventurism is a danger to the judiciary itself. The world was watching with awe and trepidation when the Supreme Court of Pakistan was deciding cases by the dozens in summary trials. Now the same is true of the Executive when the ordinances are being promulgated by the dozens. Both arms of the state can be blamed for becoming loose canons.

The Executive's actions had no moral basis at all but the judges also lost moral high ground when they decided to go for a knock out rather than a victory on points. They forgot that a victory on points was still a victory. That would have left them alive to fight another battle, another day. And they would have fought the next battle from a stronger position on the political battlefield.

While trying for a knockout, was there some hitting below the belt? One wonders how, for example, the judges could rule that an undertaking by Nawaz Sharif was not legally binding because it was signed by only one party. Does the law not recognize an IOU signed by one person? What about a patient signing a consent form in a hospital or an employee signing an undertaking for confidentiality?

Inexplicably, the judges also decided that Lal Masjid clerics had the right to decide who should be in the next management of the mosque, as if the mosque was the clerics' private property.

Let this moment in our history be a clarion call for cool heads, lest the coming generations might say they knew not what they did, when they treaded the uncharted landscape and sank into the swamps of oblivion.

Khalid-a.blogspot.com

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