Feisal Naqvi

Discretion, valour and over-egged puddings

In Uncategorized on October 2, 2007 at 7:05 am

Discretion is sometimes the better part of valour. For the Supreme Court, this was not one of those times. The latest judgment with respect to the two-offices petitions may well be legally sound but it is, in all other respects, a comprehensive disaster.

 

Start with the fact that the legal issues in question were not just simple but already decided:

 

  • Under Article 43, the President cannot hold any other office of profit in the service of Pakistan (such as the post of Chief of Army Staff).

 

  • Under Article 41(7), the President has a one time – repeat, one time – exemption from Article 43 and can therefore continue to hold the dual posts of COAS and President till his first term comes to an end.

 

  • If elected to a second term, President Musharraf cannot hold simultaneously any other office of profit in the service of Pakistan (such as the post of Chief of Army Staff).

 

  • It is settled law that the disqualifications listed in Article 63 do not apply to presidential candidates, and that the President is only required to be “qualified” under Article 62. Yes, some people may disagree with those judgments but till set aside, they remain the law of the land.

 

  • The standard argument in favour of the application of Article 63 to presidential candidates is that otherwise the Constitution would, gasp, permit the election of certified morons as President (even though certified – repeat, certified – morons cannot become MNAs).

 

  • The simple answer to the shock, horror argument is that MNAs are elected by the people of Pakistan while the President is elected by Members of Parliament and the Provincial Assemblies. It is reasonable for the Constitution to assume that the distinguished Members of Parliament will not elect a certified moron to be President. The assumption by the Constitution that the people of this country need to be restrained from electing certified morons to public office shows commendable foresight.

 

So, if the legal issues were so clear, why did the Supreme Court not simply decide them?

 

Well, for one thing, the one thorny issue which was – and remains – undecided – is whether or not presidential candidates must resign from other public offices prior to being nominated, prior to the actual voting, or only prior to being sworn in as president. Personally, I don’t think even President Musharraf would have cared one way or the other so long as the Supreme Court had explicitly allowed him to run for a second term. But unfortunately, the Supreme Court decided not to give any decision on the merits of the petitions but instead rejected them on “maintainability” grounds.

 

There are two possible grounds on which the Court could have held the petitions non-maintainable. The first ground would be the position that the petitions do not meet the requirement of Article 184(3) of the Constitution, either in that they do not relate to the enforcement of fundamental rights or because they do not relate to matters of public importance. The second ground would be the position that the petitioners should avail the alternative remedy of approaching the Election Commission of Pakistan first.

 

Frankly, I cannot figure out for the life of me how either argument can be maintained with a straight face. Yes, maintainability is a completely discretionary issue and like beauty, lies completely in the eye of the beholder; but even so.

 

Simply put, the entire country’s attention had clearly been riveted on these petitions for about two weeks. The matter was therefore obviously of “public importance.” And since the matter related to the qualifications of the President, it equally obviously did concern the fundamental rights of every Pakistani. The “alternative remedy” point is insubstantial because it was obvious that if sent to the Election Commission, the matter would immediately return back to the Supreme Court. Indeed, it already has.

 

More importantly, if the petitions in question were not maintainable, then the issue of maintainability should have been framed as a separate preliminary issue and decided in advance. Instead, the case was allowed to occupy centre-stage for two weeks at the end of which all the public learnt was that the petitions were not fit for hearing. The end result is that both the public and the lawyers feel as if they have not been accorded sufficient respect: no wonder then that the black-coats are back on the streets.

 

Speaking of the legal community, is it too much to ask of the Government not to beat them up? Does the Government not realize that such brute tactics are bound to rebound in its face and lead to further protests.

 

In simpler terms, it was very clear that the two offices issue had not galvanized the nation like the issue of the chief justice’s removal. People therefore saw the two offices issue as a “political” issue whereas they had seen the reference issue as a “moral” issue, i.e. one beyond politics. By beating up lawyers and journalists, the government has again managed to convert a non-threatening “political issue” into a “moral” issue. There are plenty of people who think that a Musharraf (out of uniform) is still the lesser of two evils (the other evil being either BB or NS back in unrestrained mode). There are very few people who think the Government has the right to beat up journalists.

 

The next few days for the Government are therefore going to be tense, in which it (yet again) tries to recover from self-inflicted injuries. If the situation calms down (probably with the help of a sacrificial lamb or two), the Musharraf juggernaut can start rolling again. But if the iron fist approach is once again adopted, it will only radicalize the people against the government. In that case, all bets are off.

 

Discretion is sometimes the better part of valour. For the Government, this is one of those times.

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  1. […] Frog (though in Urdu it’d be Monsoon Maindak) writes about the recent Supreme Court decision in Pakistan which allowed Musharraf to run for President while […]

  2. Dear Feisel aka maindak (of the monsoon variety)

    thanks for sending the link. This is a good analysis and makes some relevant points. However, as you said elsewhere, such political struggles are best managed outside the conservative courtrooms. We are witnessins a partial undoing of the historical slumber; however a long journey lies ahead.

    Keep writing and posting and do visit my blog
    cheers
    Raza

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