By Nasim Zehra
Obviously only fools can call for weakening of democracy. After all military interruptions in Pakistan that have disrupted democratic governments have significantly contributed to the weakening of institutions, to making politicians insecure and reactive, to distorting genuine evolution of Pakistan’s politics, to creating national security disasters, to weakening military institutions and to reinforcing the problematical asymmetrical national power scene that heavily tilts in the army’s favor. Governments of self-proclaimed uniformed saviors have repeatedly demonstrated that their claims to delivering good governance via military rule have proved bogus. Infact military rule has only reinforced what lies at the heart of injustice and bad governance; the politics of pelf and privilege.
And what makes this politics possible unaccountable exercise of authority. And what can stop this… credibly and competently functioning institutions that are constitutionally mandated to hold all, especially the powerful and influential accountable. These institutions include the Federal Investigation Authority, National Accountability Bureau, Federal Bureau of Revenue, Central Investigation Authority, IB. Constitutionally our representative assemblies, senate and their many Committees, are also components in the architecture of checks and balances. Yet these bodies too have largely remained ineffective because many of the powerful elected leaders, have sought unaccountable exercise of authority. Breaks to the unaccountable exercise of Constitutional authority, elected or unelected, have therefore not been applied. Only the digital world, whistle-blowers and battles of multiple-power centers, have seldom forced partial breaks.
Within the realm of governance what is the most damaging fall-out of unaccountable exercise of authority? Corruption. Why? Loads of verified data confirms that the daily cost to the national fund, of corruption/corrupt practices, including tax evasion is
Rs 12 billion (The Nation Aug 19, 2013). The World Economic Forum’s Global Competitiveness Report 2015-16 using survey data concludes that corruption as the most significant hurdle to doing business in Pakistan. Hence corruption discourages investment and slows down growth and increases the unemployed jobless, it reduces development funds leading to lower in health, education etc. Loss of funds to the national kitty means increase in indirect taxation to consumers.
Exercise of unaccountable authority encourages corruption which leads to denial of basic Constitutional rights to Pakistani citizens since corruption leads unemployment, lack of education, ill-health etc.
If this is our current reality in which those in position of authority are the primary contributors to corruption that hits the average Pakistani citizen, and we know that military interventions have only hugely exacerbated Pakistan’s problems of governance and security, should we then feel helpless? Certainly not.
The Constitution dictates that in such a hopeless situations its citizens can turn to the Supreme Court. Under article 187 the SC “shall have power to issue such direction orders or decrees as maybe necessary for doing complete justice in any case or matter pending before it including an order for the purpose of securing the attendance of any person or the discovery or production of any document.” It is an enabling and empowering provision, which vests in the SC unfettered powers to go to any extend to do complete justice.” In exercise of its authority therefore the oft repeated arguments we hear about the law of evidence, jurisdiction questions, trial court, precedents, in this Panama case, have to be subsumed within this ultimate authority that the Constitution gives invest in the Supreme Court.
On the argument regarding the procedures that the Supreme Court shall follow, the Sir Syed Ahmad Khan’s son, Justice Mahmood of Allahbad High Court observed “ Courts are not to act upon the principle that every procedure is to be taken as prohibited unless expressly provided for by the Code, but on the converse principle that every procedure is to be understood as permissible till is shown to be prohibited by the law. As a matter of general principle prohibition cannot be presumed.”
Hence Supreme Court is the Court of last resort. It is a Court that is Supreme, it has the powers to break dead locks within power play, within exercise of authority and all else that denies justice to the citizens of the State of Pakistan. It is not a court of law alone. The Supreme Court is a Court of last resort and has under the Constitution full authority to create new procedures suggest new laws and address contradictions in the system that surface from time to time. It is a court of justice; its mandate is to provide justice.
With regard to the Panama case of the many observations, there are three noteworthy. One, for decade’s huge corruption scandals fell on the wayside since ‘there is no paper trail. The experienced crooks never leave behind any paper trail’ we were always told. The Prime Minister and his family’s lawyers largely have only the Qatari letter and an affidavit presented by a family member but no documented money trail to show source of payments for the London property.
Two, on the acid test for corruption or vice versa of integrity, the most valid question is one of assets versus income. Does the two add up or is there convincing evidence available to explain the discrepancy between assets and income?
Three, the other factor is about excluding the Prime Minister’s speech not being fully examined and not being admitted as evidence against him simply because the Prime Minister’s parliamentary speech has protection under the rules of business. Whatever the rules, its common sense that this is gross violation of public trust and justice that the Prime Minister’s own statement which have to do with his integrity and financial propriety, would not be examined.
The Supreme Court has itself through the Panama case hearing concluded three critical facts. One that institutions like NAB, FBR, etc are hopeless where it comes to holding the powerful accountable. Infact the bench observed that NAB is Prime Minister’s insurance policy. Two, that the defendants lawyers have failed to provide documented money trail of payments made for the Prime Minister’s family’s London properties. Three, that the PM’s family’s lawyers have repeatedly produced new and additional arguments to defend their clients. Four, that under article 62 integrity and honesty of the country’s Prime Minister is essential. Five, the Prime Minister’s two speeches claiming he has all the documentation to show how the property in London was paid for, has been proven factually incorrect.
Hence given the overall context, content, the historical and far reaching significance of the Panama case and given the Constitutional authority of the Supreme Court, the SC judges must deliver hands-on justice on the Panama case. Their judgment alone can potentially prove to be the beginning of curtailing widespread corruption. These judges are now positioned to demonstrate what it means to holding the highest authority in the country accountable. No judgment will cause any Constitutional crisis but indeed continued unaccountable authority, does repeatedly take us towards crisis.
The ball is in the court of the Supreme Court bench.
Meanwhile as the debate on the Panama case continues in the public sphere it throws up interesting trends. It appears that politics and political history has subtly soiled our best minds with doubt and confusion how committed should we be to the good of the people and the competent functioning of the systems. Many among us tend to lack the clarity required to cut across the widespread muck of doubts and conspiracies thrown up by power play. And no less the intellect that solely dedicates to earning a living, indeed compounds the muddled scene. Under the shadow of intense power play our intellect has tended to be reactive. The reactive colors the best of our analysis!
Meanwhile the legal practice that allows reframing lethal political and moral issues — by turning the immoral and unjust into just and acceptable, based on mere technicalities, that practice is proving too costly for society. The unjust and the immoral is just too obvious and too cumbersome for society to accept it. Obviously the time has come to, while remaining within the Constitution, to alter technicalities — which better forum than the Supreme Court — the court of justice.
The writer is a senior political analyst and an anchor at Channel 24. She tweets @NasimZehra