Monday, June 11, 2012

Of political questions and partisanship

By Yasser Latif Hamdani

The late Z H Zaidi, who edited the Jinnah Papers, had edited an earlier volume a few decades ago, which was called Jinnah-Ispahani Correspondence. This volume contains the correspondence between Mohammad Ali Jinnah and M A H Ispahani, spanning over a decade. In Pakistan, we are so disconnected from our history that nine out of 10 Pakistanis are not likely to know who M A H Ispahani was and why the founding father of this country was corresponding with him. I do not wish to give my readers a history lesson, therefore suffice it to say, Ispahani was Jinnah’s foremost lieutenant in Calcutta. He was one of the biggest financiers of the Muslim League and the moving spirit behind many key steps, such as the Muslim Chamber of Commerce and the Orient Airways, which later became PIA, which Jinnah and the League initiated to improve the lot of Muslims in British India. After Pakistan was created, Isphahani served as Pakistan’s first ambassador in Washington and did so with distinction.

What prompts this writer to remember Ispahani is the recent suspension of Farahnaz Ispahani, who is the granddaughter of M A H Ispahani, as an MNA by the Supreme Court of Pakistan. The suspension itself is justified because no country accepts dual nationals as members of its legislature. However, what is striking about the Supreme Court’s decision are the remarks that the Honourable Chief Justice of Pakistan chose to give on why such a suspension may be necessary. According to media reports, it was stated by the court that Ms Ispahani might be a spy and “might have collected secret information regarding sensitive matters, particularly on defence and foreign affairs. After seeing this oath of allegiance to the US, one cannot say that such a person can be loyal to any other country.” With all due respect, reverence and regard to the august office of the Chief Justice of Pakistan, these comments, if made, are a little hard to digest even for diehard supporters of the Supreme Court, rule of law and everything nice like this writer. They impugn the reputation of a lady who has always forwarded the best interest of the country on the face of it and who has very good reason to be loyal and patriotic to Pakistan. Furthermore, the Pakistani Diaspora on the hill in the US is very active in the aid of Pakistan. Are we saying that all Pakistani-Americans are disloyal to their country of birth and origin? Is the Supreme Court then considering discontinuing the issuance of overseas Pakistanis NICs to those who are also US citizens? As a lawyer and a citizen, I for one believe that our Supreme Court being infallible can do no wrong, but outsiders might not always interpret the actions of our infallible Supreme Court in the way we do. They might well be led into believing that our infallible Supreme Court has become partisan and vindictive and that a new cycle of a civil-military-bureaucratic alliance is out to get a democratically elected government. Ah, the horror. Impressions are truly hard to dispel. Our eldest is convinced her mother loves her younger sister more than her. Democracy in Pakistan is like a child. It has never been allowed to grow in Pakistan.

Of course, they, the outsiders, are already spreading scurrilous rumours against our Supreme Court. It is said that by taking up non-justiciable (justiciability is a doctrine of constitutional law) political questions, the honourable justices of our superior judiciary are undermining the democratic process. I suppose the litmus test will be whether the Supreme Court will interfere now that the Speaker of the National Assembly has ruled that the prime minister’s conviction in the contempt case is not enough for a reference under Article 63(2). The Speaker’s ruling is technically unimpeachable, relying on the precedent of Makhdoom Javed Hashmi’s case. There, too, disqualification for bringing an unelected institution into controversy was moved and overruled by the then Speaker. Therefore, the Speaker, who is not merely a post office, was well within her rights to refuse the reference. To this end, she quoted Kanwar Intizar Muhammad Khan v Federation of Pakistan 1995 MLD Lahore 1903. It is a past and closed transaction and constitutionally protected by the doctrine of the separation of powers. In democracies, the judiciary does not interfere in political questions, period. Nixon v United States 506 US 224 (1993) comes to mind, which stated in clear terms that impeachment was a political question and could not be resolved in the courts. The House of Lords in Great Britain ruled similarly in Buttes Gas v Hammer [1981] 3 All ER 616 (HL), which is based on the doctrine of non-justiciability.

Precious years have been wasted in this futile struggle for supremacy by all sides. Five years of the current government are near completion and there has not been even a single day when there has not been an undeclared war between the institutions. The impact on our economy is terrible. The uncertainty created time and again in this tug of war has hurt this country fundamentally. The only honourable way out is for the Supreme Court of Pakistan, which is the repository of people’s confidence and hopes, to stay out of political questions and concern itself with its primary role — dispensing justice and equity to the people of Pakistan. Let political questions be decided in the court of public opinion instead.

The writer is a practising lawyer. He blogs at http://globallegalorum.blogspot and his twitter handle is therealylh

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