For the first time in four years it is not the Zardari-led federal government in a legal swamp but their puissant lordships of the superior court who find themselves in a strategic quagmire. Not a happy situation to be in for judge or general, or indeed anyone in a position of authority.
The calculus could not have shifted more dramatically. It seemed only yesterday that judicial activism was sweeping all before it and Zardari and his beleaguered team were being hammered from all sides. But as so often happens with anyone pushed to the wall, team Zardari decided, especially after Gilani’s judicial guillotining, that enough was enough and that nothing was to be gained by further retreating.
So making a virtue of desperation they decided to fight back, first by passing the new contempt law which extends the meaning of immunity, pushing it almost to the borders of the absurd, and then by stating before the Supreme Court, in as plain a manner as possible, that come what may no Swiss letter would be written.
And, lo and behold, what do we see? Not the usual fire and brimstone directed at the government and to which we have become accustomed – including the references to Caliph Omar and the poetic take on Khalil Gibran – but something which must count as a novelty in the unfolding of recent events: judicial restraint.
Justice Khosa it was who invoked the tortured soul of Khalil Gibran to drive home a point which to obtuse minds still remains a bit unclear. And it was Justice Khosa who was heard declaring on Wednesday…”We trust that the gap between the stated positions of the two institutions is not impossible to bridge and we wish him (attorney general) well in his efforts to bring acceptable solution to the pending issue.”
There was more in the same vein: “Now the whole country will not be looking towards us. Don’t disappoint them…Let’s solve this, we are not against the system…but at the same time we don’t want to compromise our position…We have been friends for 30 years (this to the AG) and we are ready to help and we have no personal interests against any national party. We know the economy has nosedived and the political instability is killing us.”
If this was startling, how much more so the following: “This (NRO implementation) is our national issue and you (the executive) have to take a political decision for safeguarding courts. Let’s be honest, this is our country and we have to sink and swim together…Politics is the name of adjustments, politicians are trained for this. Therefore, adjustments from your end will be more flexible.” In the end it boiled down to the plea – it almost sounded like a plea – that if some sort of letter was written to the Swiss authorities the matter could be wrapped up. A lady speaking thus would be charged with protesting her innocence too much.
Earlier it was team Zardari which was judicially over-stretched. Now it is the Supreme Court engaged on several fronts at the same time. Apart from the NRO case, the biggest imbroglio of all, petitions against the new contempt law are up for hearing. My Lord the CJ’s son, Arsalan Iftikhar, has filed a review petition against a judgment – wait for this – of a bench of the SC. And Arsalan and the SC registrar, Dr Faqir Hussain, have received summons by a NAB team – in the Arsalan/Malik Riaz case – to record their statements, summons they are not finding amusing. Meanwhile the Swiss letter, mother of our woes, remains as elusive a prospect as ever.
Gilani’s sacking for defying the Supreme Court was supposed to be a triumph of the rule of law. But with the matter in limbo and the government now seemingly determined to fight it out we are descending from the heights of the sublime to something closely resembling a comedy.
Theoretically the new prime minister could also go Gilani’s way. But the sheen having worn off the triumph of the rule of law, a second sacking while judicially possible would entail political complications in the form of more criticism coming the Supreme Court’s way for over-reaching the exercise of its authority. The search for a middle way out of the crisis, evidenced by the tenor of Justice Khosa’s remarks quoted above, bear testimony to this perception.
This is a smarter game the PPP is playing than at any time since its confrontation with the SC began. Babar Awan was too loud and abrasive for anyone’s good, his own included. Aitzaz was clever but also a bit ambivalent, standing his ground but shying away from too hard a line. With the new duo coming to the fore – Law Minister Farook Naek and Attorney General Irfan Qadir – the ambiguity seems to have gone. The SC is being challenged directly but by reliance on the text of the law, not the power of the microphone or the TV cameras.
As we have seen, from the PPP’s point of view this new approach is already paying dividends. For the first time since this confrontation began it is the apex judiciary which, instead of calling the shots, seems to be on the defensive.
Where are the long marches in defence of the judiciary? Their strength, always more fiction than anything real, would seem to have petered out. Lawyer associations still call for the odd strike but they seem oblivious of the law of diminishing returns. Their strikes, provoked and unprovoked, now hurt their own community, and certainly their own litigants, more than anyone else.
Strange to hear in this surreal atmosphere the observations by some of their lordships in the contempt case that the opposition in the National Assembly should have opposed this law more vigorously than it did. Have legislators ever affirmed that this is how their lordships should conduct their business? But their lordships are now telling legislators how they should have conducted theirs.
In any event, what would have satisfied their lordships? The PML-N opposed the contempt law but, unlike its behaviour on some previous occasions, occasions best forgotten, it refrained from conducting itself like an army of banshees. Its members signified their opposition to the bill but they did not yell at the top of their lungs. Nor, as at budget time, did they brandish their fists or hurl documents into the air. Does dignified behaviour not come under the penumbra of committed opposition?
The power of words is best exemplified by reasoned argument. What will it take Pakistan’s lawyers and politicians to understand that shouting and petulant behaviour impress no one? And what will it take them to understand that brevity is more effective, infinitely more powerful, than the gift of being longwinded?
For the life of us we can’t seem to make a point in a few words. Watch the performance of our TV commentators. They go on and on. An hour of political chat anywhere else in the world is considered too long. Here guests constantly complain of a shortage of time. The French writer Pascal once apologised for a letter, saying it was too long because he did not have the time to make it short. This lesson seems to be lost on our political class, probably because as outsiders have had occasion to observe conversation, as opposed to oratory and the recitation of poetry at public places, is not a sub-continental art form.
From Bacon’s excellent essay (which of his essays is not excellent?) on the judiciary I would press two quotations. First: “Judges must beware of Hard Constructions and Strained Inferences; For there is no Worse Torture than the Torture of Lawes.” And second: “Patience and Gravitie of Hearing is an Essential Part of Justice; and an Over-speaking Judge is no well-tuned Cymball.” This essay should be essential reading for lawyers and judges. Politicians too would benefit from it.
Tailpiece: Another soul we couldn’t hold onto, a name I missed last week: Qurratulain Haider. She opted for Pakistan and thought she would make Karachi her home. But then she left for London and later Delhi, Nehru restoring her Indian citizenship on a simple letter written by her. Haunting thought: was the new state, the nascent Kingdom on the Hill, too good for her? Or was she too good for us? http://www.thenews.com.pk/Todays-News-9-123077-The-tide-it-seems-turneth