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The judgement of Solomon

The Chief Justice of the Supreme Court has confirmed that the judgment in the former PM’s case against Dissolution of the National Assembly of Pakistan would be given on or about Wednesday Jan 29, 1997, less than a week away. As the nation waits with bated breath, it is time to take stock of the various scenarios that could emanate from the verdict and the options available with permutations and combinations thereof. While it is expected that the Honourable Justices would go strictly according to the letter of the law they cannot remain isolated from society or oblivious of what is happening around them, the aspirations of the people of the country and their perceptions, evidence of malfeasance or lack of it notwithstanding. If the world is a global village in this information age, the nation is not more than a village meeting hall.

In the first scenario, we have the National Assembly (NA) being restored. Like in the Nawaz Sharif case in 1993, the Ms Benazir government comes back into power and the Caretaker government goes into oblivion as if it never existed, confined to being an aberration that lasted less than 90 days (81 days to be exact, 43 days more than Balakh Sher Mazari Caretaker Government that never was). Because of the many more days that the Meraj Khalid Caretaker government has been in place, many more changes have taken place than during the 38 days Mian Nawaz Sharif was out of power. Furthermore there was much more wrong to right this time than in 1993. At the same time public defections have taken place from Ms Benazir’s camp registering the widespread anger within the PPP about Asif Zardari and his cronies. For Benazir to reverse major decisions of the Caretaker regime would be next to impossible, just putting loyalists back in place in government will take some doing. Remember what a supposedly chastened President could still manage to do in 1993 after the Supreme Court. The next scenario is the one that we are on course at this time, i.e. having the Feb. 3 elections by denying the former PM any relief on the grounds that the President was right in his application of Article 52(2)B of the Constitution. The NA would remain dissolved and the Benazir government remain dismissed, elections would be held in less than 10 days. Unlike Khalid Anwar’s submissions in the Mian Nawaz Sharif grounds in 1993 whether the President could exercise such absolute powers in a democratic parliamentary governance, the Plaintiff’s counsel has been reduced to fighting the case mostly on the merit of evidence, most of it overwhelmingly against the Plaintiff. There are technicalities that invite the Court’s attention but would trivialities be enough to stay the hand of the Honourable Justices in the face of widespread public knowledge about wrongdoing? An independent POLL conducted in 93 cities and towns of Pakistan barely 20 days before the elections shows that 45% of those questioned feel that accountability should come before elections, while 31% of the 55% majority asking for elections first feel corruption was a most important issue but that elections should take place first. One may well ask, why is such a major part of the electorate demanding accountability unless there was good reason to believe that wrongdoing on a massive scale took place? Why was there no such demand when the Moeen Qureshi Caretaker Government took office after the Nawaz Sharif regime? A majority of the public believe that the Benazir regime indulged in systematic criminality and misuse of office, that is why they are keen to have accountability in such numbers? The only reason that PPP is surviving, even though as a semblance of itself, is because Asif Zardari is not on the scene and Ms Benazir remains a very potent electoral force.

What if the Supreme Court should decide that while the Benazir Government can be held responsible for violating the Constitution and criminal acts thereof on a number of courts, dissolving the NA amounts to giving collective punishment to the whole lot of elected which goes against the norms of natural justice? Their contention may be that since only a few black sheep MNAs were actually involved in malfeasance, a handful from among the ruling party, how can the others be held responsible for the acts of corruption and criminality? Among those running the government, most were not even elected members but a cabal of Zardari cronies who operated with impunity under the Constitutional cover of an elected government. The analogy would be that of a shot fired from a village, does one burn the whole village down if one cannot trace out the individual who fired the shot? On the same analogy, since we know “who fired the shot” i.e. the Benazir Government, why not hold the government responsible and absolve the elected representatives in the National Assembly who were powerless to stop Zardari? The Honourable Justices could well decide that the President was right in sending the government packing but he over-reached himself when he dissolved the NA. But could the President send the government packing without dissolving the NA? How could he Constitutionally separate the two when he knew that the government by virtue of the perquisites and privileges it could dish around, enjoyed a comfortable majority in the NA and could easily acquire a vote of confidence if asked to do so by the President or ride out a vote of no confidence, if one was asked for by the Opposition. In fact the Catch-22 is that the Constitution binds him to take the extreme step of collective punishment since a singular punishment cannot be administered.

While the first two scenarios are pretty open and shut as regards options and consequences thereof, the third scenario envisages a Solomonic judgment, in fact akin to the argument given in “The Merchant of Venice” by Shakespeare about Shylock taking back the pound of flesh without spilling a drop of blood. One can restore the NA but can the government be held to be illegal and having acted in violation of the Constitution without suo motu taking action against the perpetrators of the illegality thereof? Should the government be held culpable and brought to trial, who could fill the void in the vacuum? A turmoil could well result in the absence of clear disqualification of number of NA members. It is within the realm of possibility that from this confusion a consensus candidate may emerge, a nominee of the PML perhaps but one acceptable to the PPP (someone like Ch Nisar Ali Khan in the absence of the man who could have been an ideal PM but who lies helplessly ill, Malik Naeem Khan). With elections only 5 days away on Feb 3, the court could also decide that while the NA could be restored and the government held culpable because of their illegal acts, it would be better to let the people exercise their right of adult franchise and give a fresh mandate to their leaders. Given that we are less than a week from the fait accompli of elections and to avoid “a clear and present danger” (as enunciated by US Supreme Court Justice Oliver Wendell Holmes) of confusion leading to instability, the Supreme Court could suspend the verdict and allow elections to be held on schedule in the face of 55% public opinion that says elections should be held as compared to the 45% who want accountability first. After all what can be judged to be a more “clear and present danger” than the obvious fact that the former PM, a potent political force, still closes her eyes to the more than obvious follies of her husband. Should this nation be held hostage so that marriage can prosper?

The Supreme Court may well be required to give a verdict on the lines of Solomon but may well have a Hobson’s Choice on their hands.

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