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Will SC be judged?

Updated June 12, 2018

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DOES the fact that the Supreme Court stepped in to supervise issues like health, water and education and political propriety in Nawaz Sharif’s case resonate with the voters? Or has the Supreme Court itself failed if the same people are returned?

Earlier this year, the chief justice visited Mayo Hospital at Lahore and then Jinnah Hospital in Karachi. Both these hospitals were a sort of name-and-shame for the respective PML-N and PPP governments. However, when in KP, where naya Pakistan was supposed to be unveiled when the then chief minister Pervaiz Khattak was confronted with the lack of tabdeeli in certain services by the chief justice, the answer was illuminating. Instead of advocating his government before the court, he apparently replied to the effect that the KP had never voted in the same government twice and if they did that would mean the people appreciated tabdeeli.

In other words he said the same thing that the other chief ministers were saying to the chief justice, in effect, ‘mind your own constitutional turf’ Judicial and political relationships are never easy. In 1836 in the UK, the official parliamentary reporter Hansard published the proceedings of a parliamentary committee that had reviewed an inspection of Newgate Prison. The committee had found a book for prisoners and characterised it as obscene. It is unclear whether the book on the diseases of the generative system titillated or educated more. The publisher of the book, a colourful character by the name of Stockard, claimed that the book was an educational treatise while parliamentarians were inclined to consider it pornographic. As we all know, this still happens: what might be pornography to a respected politician might mean art to an equally well-known actor.

The publication of the House of Commons report by Hansard was challenged in court by Stockdale as defamatory to him. Hansard was ordered by the House of Commons to plead that the publication, being a parliamentary publication, was privileged, which meant that Hansard could not be sued in court for it. The relevant court of England ruled against Hansard.

Of course, matters did not stop here. The courts ordered Hansard to pay damages to Stockdale. The House of Commons, incensed at the judiciary for interfering in its domain, forbade Hansard to pay. When the Middlesex sheriffs on the orders of the court moved to recover the damages from Hansard they were themselves detained for contempt of the House of Commons by its sergeant-at-arms. And despite the unfairness of it all, the poor sheriffs ended up in prison while carrying out the court’s order and there was a protracted stalemate.

Judicial and political relationships are never easy.

Ultimately, the mess was resolved not by someone ringing up the equivalent of 111 Brigade in London but by the politicians passing the Parliamentary Papers Act 1840. This law, almost 175 years later, is today reflected in Article 66 of the Constitution of Pakistan providing immunity to parliamentarians for anything said on the floor of the house.

In a democracy, the ruling party has to resolve issues. No ruling party can blame the Supreme Court for its failure but it can take credit for any consequent governance advantage. For example, every party is now claiming credit for the improved law and order although they were dragged kicking and screaming towards it.

Constitutional politics involves balancing elected and unelected forces. From a socioeconomic perspective, there is a voting public that votes on the basis of desperately needing access to local leaderships for help with basic needs like security, livelihood and conflict resolution. This is because these needs are not met by state institutions like the police, courts or job markets. Then there is the critical, more vocal educated class that calls itself civil society and looks at itself either through the Western democratic rights prism or an idealised Islamic prism both of which promise social justice and merit.

Balancing the needs of these different Pakistans is always going to be complex. And like in the matter of Hansard vs Stockdale, legal and political wrangling will continue; but the polity will only be stable if politicians can demonstrate that they can provide solutions. If politicians do not set out and achieve courageous key performance indicators to bring the two Pakistans closer and set standards of political propriety they will always remain unstable. Nawaz did not understand this and so is in a legal mess to which he is trying to find a political solution. Even if his political narrative is accepted, nobody will ever judge the Supreme Court and no blame shall ever attach to it.

The writer is a former caretaker finance minister of Sindh

Published in Dawn, June 12th, 2018