Is the SC politically motivated? —Ijaz Hussain

To determine whether or not the court is politically motivated, one needs to understand the meaning of this expression. If it signifies that a court’s judgment has political fallout when it deals with political or constitutional matters, then all such courts are politically motivated because their judgments more often than not have political implications

The Zardari government accepts
the NRO judgment. However, at the same time it is trying its best to paint the Supreme Court (SC) as being politically motivated. This is understandable because its leader, the co-chairman of the PPP and the President of Pakistan Asif Ali Zardari, is under attack on corruption charges and it wants to protect him at all costs from accountability, particularly from the cases outside Pakistan. Hence, one may be justified to dismiss the government’s attack as being mala fide. However, the government is not the only one accusing the court of playing politics. There are others, especially independent and impartial observers, who have expressed similar views. For example, Asma Jahangir, the chairperson of the Human Rights Commission of Pakistan (HRCP) has termed the court verdict as a “politicised judgment”. Similarly, Ali Ahmad Kurd, the former President of the Supreme Court Bar Association (SCBA) and the firebrand leader of the movement for the restoration of deposed judges has accused the court of acting upon the agenda of the forces that are working on the minus-one formula. Are these charges justified? And if not, how do we explain them?

To determine whether or not the court is politically motivated, one needs to understand the meaning of this expression. If it signifies that a court’s judgment has political fallout when it deals with political or constitutional matters, then all such courts are politically motivated because their judgments more often than not have political implications. For example, one could contend that the present SC was politically motivated when it rendered the judgment in the recent appeal relating to the by-election in the NA-55 constituency because it has some sort of political fallout (in addition to bringing smiles on the face of “the son of Rawalpindi” Sheikh Rashid who before the judgment thought that he was being denied the right to get elected). We understand that when critics accuse the SC of being politically motivated, they are not making a charge of this kind.

The expression “politically motivated” can also signify that political rather than strictly juridical considerations guide the court. This seems to be the thrust of Kurd’s criticism, who sees a nexus between the judgment (in Kurd’s opinion targeting Zardari) the court rendered in the month of December 2009 and the rumour that made the rounds in the country that the president would go in the same month. In other words, he appears to think that the court is working in cahoots with the establishment to get rid of Zardari. As far as Asma Jahangir is concerned, she also believes that the court’s judgment is political in character but she approaches the matter differently. She contends that the court’s judgment has violated the principle of the separation of powers between the executive, legislature and the judiciary by tilting in favour of the last. Besides, she maintains that the court by invoking Article 62 (f) of the Constitution, which the dictator Ziaul Haq got inserted in it, is treading a highly slippery slope as it can have dangerous political implications in addition to making the judiciary controversial.

As to Kurd’s charge, we fail to discover any link between the fact that the court rendered the judgment in December and the grapevine that predicted the departure of Zardari in December. In the absence of any evidence, conspiracy theory rather than anything else seems to guide Kurd. We understand that he is not happy with the way the Chief Justice of Pakistan has handled judicial matters since his reinstatement. However, that does not give him a licence to make all manner of allegations. As to Asma’s charge that the court violated the principle of the separation of powers, she too fails to furnish much evidence. For example, it was alleged that the court had asked the government to change certain NAB officials. However, subsequently it came out that it was a mere suggestion and not a direction from the court. Similarly, the court did not ask the government to put anybody on the Exit Control List (ECL). The only exception was its direction for action against the former Attorney General of Pakistan but then that was justified because he was accused of having withdrawn the Swiss cases without authorisation.

As to Asma’s charge that the court should not have invoked Article 62 (f) of the Constitution, we begin by examining the impugned clause. It prescribes that a member of parliament should be “sagacious, righteous and non-profligate and honest and ameen”. This applies mutatis mutandis to the holder of the office of the President of Pakistan because he needs to have the same qualifications as a member of parliament. She opposes this clause on the ground that it is undemocratic as Zia got it inserted in the Constitution to keep members of parliament insecure. Besides, she believes that if parliamentarians are to be subjected to such exacting moral standards, then the scrutiny of judges should be higher still because, in her opinion, they are appointed strictly on the basis of their integrity and skills.

It is true that the court should have avoided invoking the impugned clause because of its controversial character. However, if it did not do so, political parties including the PPP must take the blame for it because by not getting the “Islamic” clauses in Articles 62 and 63 that Zia introduced removed when they were in power following Zia’s exit, they have sent the message that it is a settled matter. Besides, it should not be forgotten that even in the absence of the impugned clause, the NRO is invalid on the Rosetta Stone of incompatibility with fundamental rights. Why did the court resort to it is a mystery that the detailed judgment may solve. Some critics have alleged that by invoking this clause the court has prepared the ground to disqualify Zardari as the President of Pakistan. They also apprehend that the court may invoke an even more pernicious clause contained in paragraph (d) of the same Article (which stipulates that a member of parliament should be “of good character and is not commonly known as one who violates Islamic Injunctions”), for the same purpose as Zardari is universally known as Mr 10 percent.

We conclude that the court may not be politically motivated as far as the present case is concerned. The test case whether or not it is so will however come when the court takes up the issue of Zardari’s disqualification for hearing. If it renders a judgment against him on the touchstone of clause (f) or (d) there could perhaps be justification to accuse it of being politically motivated. To avoid such an eventuality, political parties need to get their act together and get rid of the said ‘Islamic’ clauses. They must do it now when the Raza Rabbani committee is seized of the constitutional package. However, according to press reports they are not interested. If this is true, the message to the court will be that they favour their retention. In this backdrop, if the court invokes the impugned clauses to disqualify Zardari, would it be fair to hold it guilty of playing politics?

The writer is an Adjunct Professor in the National Institute of Pakistan Studies at the Quaid-e-Azam University, Islamabad. He can be reached at hussain_ijaz@hotmail.com

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