The Parameters of Fairplay
Requiring the Chief Executive of any Government to appear in person in any court of law is unprecedented, not only in Pakistan. Even in the United States, President Clinton has been fighting to avoid fighting court cases while he is President, what to talk of appearing in person. There must be some legal protection for Chief Executives of Government and other important functionaries otherwise they can be kept in Court by anyone for any length of time, what this will do for governance needs no elucidation.
The PM had three options, viz (1) to apologize before the Court unconditionally (2) go half way i.e. without expressly admitting any guilt express regrets for any remarks which may have upset the judiciary or (3) fight out the case on merit. Given the circumstances and the composition of the Court (and mood thereof), he risked being sentenced on any one of the options and thus being put on course for disqualification as PM. With such an eventuality a foregone conclusion, there were many suggestions from different quarters, ranging from one extreme to the other. One must refer to Fuller as far back as 1732, to quote “natural folly is bad enough but learned folly is intolerable”. Suffice to say, many ambitious souls are looking forward to Mian Sahib coming to grief, this is an excellent opportunity to differentiate friend from foe.
Within the sense of the laws of the land (the malice factor notwithstanding), the Court would have had little option if the PM has showed no signs of contrition, irrespective of his perceived guilt. On the other hand, the very fact that the PM, to his lasting credit, chose to appear in person before the Court in “the highest Islamic traditions” elaborately and publicly acknowledged that he not only has full respect reciprocity, but full confidence in the supreme judiciary. As any citizen the PM also has an inherent right to expect that he will not become the victim of any personal and/or perceived vendetta and/or contrived agenda. With the utmost respect for the Chief Justice (CJ), one is unhappy to note that the composition of the Bench has raised very great concern about fairplay even in the minds of the staunchest supporters of the SC. Justice must not only be done, it must be seen to be just. Instead of the PM, public perception has put the CJ in the dock as regards vested motivation and the parameters of justice. Unfortunately, it is not the PM who is on trial but the concept of fairplay in the process of delivering justice. There is always Fuller’s admonition that in the present environment of suspicion and/or vengeance there may be “much law but little justice”, unquote. What has happened since Monday last has been frightening, nothing has happened subsequently to deflect such a surmise.
In essence the PM told the Court, in so many words or words to the effect, through his learned lawyer S.M. Zafar, “he regretted if anything that he had said may have aggrieved the Honourable Judges of the Court” or words to that effect. Opinions vary whether this is or is not like eating “humble pie” on the one hand and whether it is enough or far short of an apology on the other. As a country we are not in any political or economic state or shape to withstand further buffeting by the vagaries of nature, both natural and man-made. The consequences of the PM not submitting to the judiciary whatever one’s reservations were far more dangerous to the Federation. The PM performed adequately, he had the courage to express his regret by a personal appearance. With the utmost respects the lordships should have accepted that as sincere atonement that the PM had taken suitable action to make amends for the reasons that led to their “grief” in the first place. With respect to the Parliamentary amendment in the Contempt Laws giving an individual the right of appeal, in the circumstances that is a fair defence mechanism. Every citizen in the country has a right of appeal, why should the PM not have a right of at least one appeal? And will natural justice be served if the appeal is before the same Court? On Thursday Nov 20, 1997, the SC Court was pleased to suspend this Amendment even before it became law. Would not the qualms of justice be served by having a full Court decide whether the Chief Executive of the Government is “guilty as charged” or are we resorting to the wild west concept of justice i.e. “we will first give him a “fair” trial, and then hang him”!. Because of the lacunas and the time scale, the emergency tabling of such a Bill is understandable. These are not normal circumstances. The government could have gone for “overkill” by bringing in legislation to try and tilt the balance between the Supreme Judiciary and Parliament but by refraining to do so, has acted with maturity and put the onus on the Court. For “Caesar’s wife to be above reproach”, at least in public perception, the CJ, with all due respects, could have constituted a Full Bench, comprising all the judges of the SC or one less partisan, at least seemingly. Very needlessly, the credibility of the SC as an institution of excellence and integrity as well as an impartial referee has been called into question in the public mind. What to talk about a democracy, in every civilization these are some fail-safe lines as to propriety, human beings must adhere to certain norms of impartiality in their analysis and judgment, whatever their position and status. The Bill went to the President for his assent, while he was well within the Constitutional limitation of time, the tense environment demanded immediate assent, the delay manifested malafide intention on full display, why is the overwhelming feeling current in public perception that there is a conspiracy between the President and the CJ? Because of perceived personal vendetta and/or motives all their actions must be careful not to risk with their persons the credibility of two major institutions of the country.
The Honourable Judges are also citizens of the country and are aware as anyone else the critical impasse that has arisen because of the constitutional gridlock. Frances Bacon (1561-1626) stated, “revenge is a kind of wild justice, which the more man’s nature runs to, the more law must weed it out”, unquote. We are only five miles to midnight as far as anarchy is concerned. I personally have immense respect for the CJ, the CJ is quite aware of this and the circumstances need no elaboration but even I am aghast, to say the least, about the decision to charge sheet the PM for contempt, particularly when he has expressed his regret and appeared in person. The country is in the grip of absolute paralysis, all administrative functions have ceased to exist while wild rumours are having a field day, anarchy is around the corner. One cannot believe that the Honourable Judges of the SC would like to see this country completely break down into anarchy, this will certainly happen if the authority exercised by the government is further compromised. While the SC was certainly well within its responsibilities to keep matters within the parameters of the Constitution, is there any future in carrying the crisis to the demise of yet another democratically elected government? No one really believed that the beautiful country of Pakistan, the finest experiment in nationhood of its time, would break up and anybody who had the audacity to say at the beginning of 1971 that if such circumstances persisted this would happen was condemned as “a coward and a traitor”. But all our “heroes” were proven wrong and Pakistan came asunder. Only a quarter of century plus we have learnt no lessons and are again threatened as to our existence. Unity is a very fine fail-safe line on which we cannot survive politically or economically except as a democratic entity, the alternatives are not feasible or conducive to modern governance. In the meantime those who have stashed away millions abroad are laughing themselves sick all the way to their various banks, extending from Dubai to Cyprus to Switzerland. The most ridiculous sight ever was Ms Benazir leading the so-called retrenched Bank workers in Karachi on Saturday last protesting against downsizing in Karachi when in fact the massive unemployment in financial institutions has taken place because her husband beggared these banks through his banker touts and stashed away the loot in many foreign banks, only four of those accounts being uncovered in Switzerland have revealed US$ 80 million approximately. Where did Ms Benazir save this money, from her kitchen funds? The fall of this government will be like an elixir tonic for the likes of Zardari and cronies. The President should not play games anymore, the fact remains that he does not even represent the Party that brought him to power. What is the President’s duty? One cannot ask him to interfere in the issues being deliberated by the Court but certainly he can advise the CJ that since the issues are very important, prudence and justice requires that a full Bench of all the judges must hear the cases. The powers-that-be have a duty to this country to tell the President in the first instance to show his good faith by this simple Presidential advise to the CJ or like nearly happened on Thursday night, maybe it is time we got rid of this last remaining vestige of the Zardaris. If the President does not cease being conspirational, he should be impeached. He has no right to play with the destiny of this country. Once he is removed, the parameters of fairplay will come back to equilibrium.
Everyone concerned must rise above themselves. The PM and his colleagues have bent to the rule of law as they should. Should not the supreme arbiters of the law, their parameters met, show magnanimity and hold the vital interests of the country above their individual selves? One fleeting sign has been the adjournment of the Contempt Case till Nov 28, more than fleeting signs are necessary. Whether one likes it or not and/or howsoever much one may deny it, the buck stops in Pindi.
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