IT was billed as the day of reckoning but it ended as the day of confusion. Faced with a choice between going for the ‘nuclear option’ — requiring the ouster of the prime minister — and a slap on the wrist — a token punishment which would allow the prime minister to continue in office — the Supreme Court appears to have chosen both. If that is an improbable outcome, its roots may lie in the gaping chasm between the weight of public expectation and the letter of the law. Essentially, while there had never been any doubt that the Supreme Court had the power to sentence the prime minister to a prison term, there was some debate whether the judiciary could short-circuit the constitutional disqualification process and either order that he be disqualified by the Election Commission of Pakistan or directly oust the prime minister itself.
In the end, the court has chosen to open the door to the disqualification process but stopped short of dragging the prime minister through the door itself. The matter, it appears, has for all intents and purposes been tossed back into the political arena, where someone — anyone? — can move the speaker of the National Assembly to take note of the judgment and to refer the matter to the Election Commission of Pakistan for a decision on whether the prime minister ought to be disqualified from parliament or not.
The court has acted in a judicious manner in implicitly acknowledging the limits of the judicial sphere, but its actions do raise a question: why drag the country through the months-long circus of a prime minister on trial for shielding his boss, the president of Pakistan, from corruption allegations when ultimately all it would do is expose the limits of judicial power? Sensible as the court’s judgment in the prime minister’s contempt case is, there is a need to revisit recent history. From the December 2009 NRO judgment, to the January 2012 ‘NRO implementation’ order containing the famous ‘six options’, to the conviction of the prime minister yesterday, the court has shown a keen interest in a very, very narrow set of allegations and cases, i.e. the ones pertaining to alleged corruption proceeds held in Swiss accounts allegedly belonging to the president. But the closer the court honed in on that particular set of allegations, the more the government dug in its heels — judicial selectivity provoking governmental intransigence. Unfortunate and wrong as it was for the government to fight its legal battles in a political manner, perhaps the institution making the first move should have been more aware of this possibility and chosen a different approach for itself.
While the NRO saga is not officially dead and buried — and in this land of surprises, nothing ever truly is — going forward it is in the institutional interests of the judiciary to revisit its strategy. Be it of its own making or someone else’s, anything that drags the judiciary into serious controversy is inimical to the development and standing of that institution. In a country where few, if any, other institutions stand as beacons of hope, faith in the judiciary by a wide cross-section of society and the polity is too precious to be lost.
It was a sad day for Pakistan yesterday in that a serving prime minister blatantly defied a court because he could; but there was a ray of hope in the shape of the judges who refused to be provoked and hand down a judgment that would reverberate. Unsatisfactory as it may sound, the broader commitment to the continuity of the democratic project has rightly prevailed over narrow institutional battles. A few decades, or even years, ago when a clash looked inevitable a clash did result. But perhaps it is a sign of the growing maturity of the system that the seemingly inevitable can in fact be averted. Yesterday, by averting a clash the Supreme Court didn’t lose; the country won.