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Courts of the people

Updated February 21, 2018

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MARYAM Nawaz looked prim and poised as ever as she stood before hordes of men in Mansehra last week. She wore a pumpkin-coloured shalwar kameez, and as always a chiffon dupatta on her head; the lipstick on her lips matched exactly. Insulating her from the crowd (the stage was so packed that Maryam Nawaz had to interrupt her oratory with a chastising, “there is no more room left”) was a cabal of grinning younger women, dressed with lesser finesse than the leader whose presence required their own.

Ms Nawaz herself had come with a purpose, the same one that she has been communicating at rallies in the rest of the country: the verdict disqualifying her father wasn’t valid, she shouted from the podium to the crowd cheering on cue and waving the flags that party workers would have handed them just a while ago. “The court of the people has exonerated Nawaz Sharif,” she told the assembled, making the point she had come to make.

As it happens, this assertion is incorrect, its fallacies a direct challenge to the Constitution of Pakistan which defines the establishment and jurisdiction of the courts, the provisions for judicial independence and the method via which new judges would be appointed working in collaboration with parliamentary committee — this is a somewhat important point which has been apparently forgotten by, among others, Maryam Nawaz.

If Pakistan’s courts, which are the real courts of the people, are handicapped and their verdicts discarded, the leftover would be a minimal democracy.

It is not a coy or accidental forgetting but a politically expedient one. In insisting that ‘the court of the people’ constitutes the crowds at her rallies or those voters that make up the PML-N’s support base, Maryam Nawaz is looking out for her father’s benefit. If Pakistan’s courts can be delegitimised by setting up a false dichotomy between the will of the people and the verdicts delivered by courts, then it happens that the verdict disqualifying her father from participating in elections can be similarly discredited.

In this anti-constitutional perspective, the courts are somehow against the people and the laws they enforce independent creations. Random crowds or voters of this or that party are better judges of right and wrong, guilt or innocence.

This is not so and should in fact never be so. In a constitutional democracy, and Pakistan is one, constitutions, ratified as they are by the people’s elected representatives, represent checks on power. They ensure that those who get the votes and make the laws (via parliament) are not the same as those who interpret and apply the laws (the judiciary).

The separation ensures that the people who get the votes and make the laws, even if they happen to be prime minister, are not above the law themselves. The reason is simple: a constitutional democracy is presided over by a president or a prime minister, and not a king who ruled by virtue of the support of the people and without any constitution binding his actions; prime ministers are bound by them.

It is a crucial distinction, largely lost in the political rhetoric that insists that this or that lawmaker or prime minister be ‘exonerated’ by the people in a show of crowds and cheering and such. It is important not simply because the progeny of past prime ministers should not be whipping up frenzy to make way for unconstitutional action, but because of how such views erode democracy itself.

One of the hallmarks of a transition from democratic to authoritarian rule is an erosion of the instruments of democracy and the concentration of power in a single branch of government. If Pakistan’s courts, which are the real courts of the people, are handicapped, their verdicts discarded and their decisions discredited, the leftover would be a minimal democracy which cannot be distinguished from the tyranny of the majority.

In such a set-up, laws would matter little, and the powerful, with a clever duping of the people, could rule endlessly and without the constraint of any law at all. Hitler, Stalin, Mussolini and other fascist dictators did just this when they did away with constitutional provisions that reflected, for instance, protection of a minority instead of the untrammelled mobs that gathered to hear the Fuhrer speak.

At the Democratic convention prior to the 2016 election in the United States, a Pakistani American lawyer named Khizr Khan got on stage and offered then-candidate Donald Trump a copy of the American constitution. As a Muslim-American, he wanted to remind the would-be president that democracy constitutes many parts, among them a respect for the constitution that protects the equality of all before the law. It was a powerful moment and a memorable one.

A similar moment needs to happen in Pakistan; some brave Pakistani needs to stand up and offer a copy of the Constitution of Pakistan to Maryam Nawaz, so that she can read for herself where and how the courts of Pakistan were created to apply the laws of Pakistan.

Undoubtedly, justice is a difficult commodity to mete out in Pakistan; prosecutors disappear, judges are harassed, their children threatened, their lives at risk when they dare to challenge the powerful and well-connected. When the right thing is done, when the powers that be, or that were, are held to account for their transgressions, when sentences are imposed, these must be recognised as acts that strengthen Pakistani democracy. All Pakistanis can do this, for the recipe is simple: every time there is mention of the ‘court of the people,’ refer them to Part VII, Chapter One of the Constitution. There, they can find out for themselves that the courts of the people already exist. They would know that they exist not for the exoneration of one or another politician, but for the protection of Pakistan’s democracy.

The writer is an attorney teaching constitutional law and political philosophy.

rafia.zakaria@gmail.com

Published in Dawn, February 21st, 2018