Enemies of Reason
By Dr Mohammad Taqi
Florida
“Suspicion is the enemy of reason, but the persons who suffered from this prejudice include judges of the superior courts, leaders of the Bar, generals, intelligence services and all the right of center parties” — Justice Dorab Patel.
The Bahria torpedo a la Malik Riaz Hussain nearly sank the self-styled flagship of virtue and the ensuing maelstrom sucked in more victims than one could imagine. Free fall of many media anchors and journalists, along with their ethics, threatened and did manage to take down many with them. However, with the Supreme Court of Pakistan firing back, to fire the prime minister, Mr Hussain may eventually be forced to remember Tuco’s words from The good, the bad and the ugly: when you have to shoot, shoot, don’t talk. Nearly sank does not count.
More importantly, however, the current turbulence has reopened or exposed the existing fault lines in the body politic of Pakistan. The military establishment and the politicians have traditionally been at the opposite ends of the tug of war in Pakistan. The superior judiciary has acted as the military’s sidekick in most instances, barring a couple of notable exceptions where an individual judge worked to appease a particular civilian ruler. While the separation of the executive, parliamentary and judicial powers has conceptually and constitutionally existed, a pliable judiciary has almost always acted as a proxy for the military establishment that has never had a constitutional role in this trichotomy.
The post-March 2009 judiciary arrived at the helm with a sense of entitlement and populist vigor, which it felt it had earned for inspiring and leading its own restoration movement. Frequent references, in several recent verdicts, by several judges to the Supreme Court of Pakistan to being “the people’s court” rather than a constitutional court indicated that the justices were operating under the influence of what they perceived was popular support received during the restoration movement. The restored judiciary had come to the bench after contracting the messiah complex! The misplaced assumption of being the new saviors has put the judiciary in a unique situation where it has on occasion been at odds with both the civilians and the military and appears to be acting not just as a proxy, at least in its own mind, but a power player.
There are several fundamental problems with such assumptions on the part of the judiciary. Firstly, as an institution it lacks, by itself, the wherewithal to effect any meaningful change in the existing structures. It has to rely on the support of other players and weakness of the opponents to be taken seriously. The present Supreme Court appears to have made common cause with the rightwing politicians and media persons for its strength. The Pakistan People’s Party (PPP), which has been at the receiving end of repeated adverse verdicts, has limited options in terms of how to respond effectively. The PPP does not have the political capital required to counter a populist judiciary, and certainly not in the fifth year of its government; no political party usually does at such a late stage in its stint. The second issue flows from the inherent inability of the judiciary to be a direct power player. While by design it may wish to apportion itself imagined and tangible glory, by default such a judiciary ends up transferring all its gains to its supporters directly and/or indirectly. Direct beneficiaries in the present scenario could be the political parties that have been egging on the judiciary. The ultimate beneficiary, however indirect, will remain the military establishment, which stands to gain from the civilian institutions pouncing on each other.
Thirdly, and most importantly, there are legal as well as philosophical issues with a populist court. The Human Rights Commission of Pakistan, in its report for 2011 seems to be of the opinion that the superior judiciary’s overzealous use of suo motu powers as well as entertaining petitions by so-called interested parties — the definition of which remains nebulous and ever expanding — has taken up the time and energy of the courts to the detriment of other cases. In addition to, and often at the expense of, its normal function as the court of appeal, “the country’s apex judicial forum was also functioning as an ombudsman’s office, as an administrative court, as an anti-corruption tribunal, as a supreme investigation agency, and as the sole defender of not only the constitution but also of public morality.” Add to this the court taking over the functions of the Election Commission of Pakistan in its verdict against the Prime Minister Yousaf Raza Gilani and the actions of Superman would start to look like, well, child’s play.
Like the other messiahs and supermen that Pakistan has had, the judiciary seems not only too full of itself but extremely suspicious of the others, especially the politicians. Pontificating from the bench, resorting to morally charged poetry, brandishing the scripture in open court while casting aspersions at and actually calling civilians disloyal to Pakistan, point to the simultaneous delusions of paranoia and grandiosity that are the sine qua non of ideologically anchored messiahs. The opening quote is from the late Justice Dorab Patel’s commentary on Pakistan vs Wali Khan Case (initiated, ironically, by ZA Bhutto). Justice Patel went on to cite Wali Khan:
“Democratic states did not have ideologies. A democratic society is a pluralist society, and it is difficult for an ideological state to be a pluralist society. On the other hand, ideological states have generally ended up as dictatorships, because criticism of the state’s ideology is resented. But in democracy, citizens and political parties have the right to criticize the most cherished values of society.”
It is unlikely that a direct dictatorship will be able to dislodge democracy in Pakistan but regression to seventh century symbolism is the worst thing that can happen to a democracy in the 21st century.
