Pakistan: A Permanent Building Or A Tent
The last Viceroy of British India, Lord Mountbatten in a brutally blunt metaphor, stated, “Administratively it was the difference between putting up a permanent building, a Nissen hut or a tent. As far as Pakistan is concerned we are putting a tent. We can do no more.”
The undertone suggests that he expected this tent-like country to be blown in the air by the strong Autumn winds or wither away in the unforgiving monsoon season, like a kite dancing in a storm.
So has Pakistan belied this ruthless prophecy?
History speaks for its administrative failures. There have been times laden of constitutional abrogation, as well as prolonged periods of holding it in abeyance to either endorse a martial law or ousting democratic governments. For a period of time, the honourable institution incumbent to do the most hallowed job in the country had its legal wits chained to its feet and nailed in the ground. With a few notable exceptions such as Justice Sardar Mohammad Iqbal, Justice Cornelius, Justice Dorab Patel, Justice Mohammad Haleem and Justice Ghulam Shah, our last line of constitutional defense was compromised at the hands of the status quo. In hindsight, it would not be an accident to stumble upon the thought that the tent might wither away perhaps even before Autumn to the joy of Mountbatten.
However, 2017 turned out to be a different season. The nation was witness to the unwavering spirit of the government in the sweltering summer, their cronies soaked in sweat and suspicious of a simmering plot of conspiracy that, may deserve John le Carre’s appreciation and possibly another master class theme for his book, only second to Tinker Tailor Spy Solider. On the other end of the picture lied a factual report that had unleashed scrutiny on the executive. The welcoming part is the dwindling away of a long-established tradition of subservience and a sense of superiority and inferiority between our civil military institutions with the honourable Supreme Court standing at the helm of this administrative evolution.
This gripping dramatic frenzy of the government and the opposition was put to its resting place following the unanimous Supreme Court decision. The decision is not one-sided, neither black and white, nor fuelled with the desire to send the Mr Nawaz Sharif home but, it leads to an end. Firstly, International Anti-Money Laundering Agencies have generally been unsuccessful in their endeavors to annihilate the parallel black world economy generated by siphoning money in and out of countries. The reason has either been the involvement of state officials or the malignant clemency shown by the unscrupulous officials to their patrons. Standing against the tidal current, the Supreme Court wielded its pen to pull the strings and by doing so, it struck the chord echoing Pakistan’s seriousness to the international Anti-Money Laundering Regimes.
Secondly, contrary to the prevalent Pakistan’s socio-political thought it came as a surprise to them when the Supreme Court made clear that, imposition of Article 62 and 63 “Sadiq” and “Ameen” could be activated even on a slight scale, one which does not require millions or billions of pounds, rather mere concealment would suffice. The Herculean court decided on the basis of a moral reasoning that even statesmen with power are bound by the restrictions of law.
The Court has pointed out in this seminal judgment that all the reservations by the political parties are on one side; it is the Constitutional order which prevails and which has to be followed. However, again with all logic, the court on pages 140 and 141 said that, “the court determines for itself what the law is” and for establishing its jurisdiction under Article 184(3) it observed that this power is conferred so as to deal with cases wherein compliance strictly with codified law may create injustice. That being said, the honourable court could well have decided to end the reign of uncertainty around Article 62 and 63 in an attempt to cover the glistening sharp tip of this sword by interpreting the ambit of “Haqooq-ul-ibad” (public conduct of a person affecting other) restrictively.
With reference to this judgment, it may be extremely difficult for a person who may have honestly held a belief or may have made an honest mistake in his affairs to be exonerated. Even the Holy Quran speaks for such an exception in Surah Al-Maidah 5:89 “Allah will not punish you for what is unintentional in your oath, but he will punish you for your deliberate oath [if false]”. As a result of the unsettled state of law, it is highly probable that this glistening sword could be wielded as a weapon to be used by many to settle their political vendettas and score points by frivolous litigation thereby, adding the number of backlogs cases.
Having the fragility of a “tent” may not be an understatement in our democratic trajectory. From Liaqat Ali Khan to Nawaz Sharif, no prime minister has completed the constitutional tenure of 5 years. While a salient feature of democracy is the rule of law, so is certainty and stability of its administrative structure (which Pakistan yearns for). It is the balance between the two which although difficult, must be done delicately. Imran Khan Niazi v Mian Mohammad Nawaz Sharif marks its place in legal jurisprudence, as well as in the political scene for years to come as a Christmas ghost haunting Members of the Parliament. There remains one parting wish, that it should not be utilized as a weapon and recur history. If this wish is fulfilled, then we would be in a position to bluntly belie Mountbatten for being fatuously verbose to a responsible country.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.