BL Saraf
The latest development emerging from Pakistan has reignited the question whether county’s Supreme Court is really discharging duties as a guardian of the democracy or behaves as a ” coup facilitator .” In the short span of five years this is for the second time that Pak Supreme Court has unseated an elected PM from the office . Nawaz Sharif has been shown the door as ” not being honest , sagacious and truthful.” As reported, the Bench said unanimously , ” Mian Muhammad Sharif is not honest and deemed him unfit for holding office.” The order came about pursuant to the documents leaked, last year, by the International Consortium of Investigative journalists , from Panama based Law Firm Mossack Fonseca which indicated that Sharif’s children may own at least three off- shore companies registered in British Virgin Islands, suggesting Sharif owned assets beyond known means of income. Names of some Indians were also disclosed .
Before Sharif, in 2012 the Supreme Court dismissed PM Yusuf Raza Gillani for refusing open charges against his President Asif Ali Zardari.
Turning Criminal Jurisprudence on its head, the Court first ordered disqualification of Nawaz Shariff on the grounds mentioned above and then ordered his trial for the, misdemeanor’. When it ought to have been otherwise . As reported, Supreme Court said, ” Sharif is disqualified after an investigating panel alleged his family would not account for its vast wealth .” Less said the better about a court which dethrones an elected Prime Minister on the mere “allegations” – of an investigating panel! We don’t hold any brief for Nawaz Sharif . Let him face the music if he has done something wrong . But from a law student’s perspective , his guilt is to be first established through a fair trial . In normal practice his disqualification from holding a public post has to follow a conviction, if , rendered after the culmination of a due process of law, appropriate to the facts and circumstances of the case .
Judicial history of Pakistan reveals a pattern. Judiciary generally goes with the ‘real’ authority in Pakistan – euphemistical called the deep state. Starting from 1958, the Chief Justice Muhammad Munir – otherwise a fine legal mind -” justified General Ayub’s military coup as a revolutionary necessity and argued that principles of public law were founded not on the books but in force of public events,” writes Ayesha Jallal in her book The Struggle for Partition Homeland and Global – A Muslim Policies p101. Then she goes on to write that infamous Doctrine of Necessity came to be applied whenever a political despot like Gen Zia sought legitimization of his military rule, public flogging and bumping of the political opponents like Z A Bhutoo.
The Supreme Court would crack down on politician’s corruption leaving misdemeanors of other influential sectors of society untouched. No one has courage to complain or initiate action against the Pak Army, whose wrong doings are well known .
Once the Pak Supreme Court boastfully remarked that it will not allow anyone to deviate from the path of Shariat and denounced any attempt to secularize the Pakistan society. No wonder all the members of Bar Association Lahore stood in line to welcome the killer of Punjab Governor Salman Tasser when he was brought to the court to face trial. The murdered Governor had intended to change the Draconian Blasphemy law in Pakistan Punjab. Lawyers showered rose petals on the Governor’s killer who was none other than his security guard. POK High Court made it compulsory for the staff members to follow Shariat strictly if they have to ask for a raise in their salary.
Pakistan has had an unfortunate history of dysfunctional governance: more of the times held by the Army Generals or political despots, thus strangulating growth of the institutions, so necessary for the stability and prosperity of a nation state. None of the seventeen Prime Ministers has had the fortune to live his full term. long bouts of political instability in Pakistan has not only damaged its own vitals but also has been a cause of nuisance to the whole region. The Pak Supreme Court, as a vital column of the State , has to shun its image of a facilitator of the despots and religious bigots. It must assume its rightful role as a bulwark against any assault on the democracy and discharge functions as such. This is the favour the Court can do to itself, the Pakistan society at large , as also to the whole neighborhood .
(The author is former Principal District and Sessions Judge)
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