A legal solution to politics

Arifa NoorUpdated February 12, 2019 Facebook Count

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THE Faizabad dharna judgement has been given and generally lauded. There was a view here or
there that wasn’t too complimentary but these were lost in the din of the outrage over the lack
of television coverage of the judgement.

The 40-page judgement ends with around 15 “declarations and directions”: reiterating the
citizens’ right to form a political party and the right to assemble and protest; protesters who
obstruct people or damage property should be held accountable; the ECP should implement the
law on political parties; parties must account for the source of their funds; the state should be
impartial and fair; the state set a bad precedent by not prosecuting those behind the events of
May 12, 2007, in Karachi; and those who issue a fatwa harming others must be prosecuted
under the Anti-Terrorism Act and the Prevention of Electronic Crimes Act (Peca).

Take a look: 10 major takeaways from SC's Faizabad sit-in judgement

It also said: Pemra should act against broadcasters advocating an offence; Pemra should act
against those cable operators who stop or interrupt the broadcast of licensed broadcasters;
prosecute those spreading messages that incite or advocate an offence under Peca; agencies
must not exceed their mandate; agencies should monitor those who threaten Pakistan and those
who undermine the people’s security; enact laws to stipulate the mandates of agencies; the
government should initiate action against those members of the armed forces who violate their
laws; the police should plan to handle protests; and the government should monitor those
advocating hate, extremism and terrorism.

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To the layperson (being used interchangeably here with a journalist), these points sound not
much different from an op-ed or a comment. Specific steps are few while vague and sweeping
directions about what should be done tend to dominate.

Historically, we have been in the habit of expecting the judiciary to resist and change political
realities.

In other words, the judgement makes some very astute and sharp observations, but there is little
in the operative part in terms of specific orders and directions. (For critiques that touch upon the
legal aspects of the judgment, Saad Rasool’s comment in the Nation on Sunday and lawyer
Reema Omer’s tweets shed some light on the issue.)

But is it fair to expect more from the judiciary? It can be argued that such ambiguity is to be
expected when courts are forced to delve into political issues. Be it the Faizabad dharna or May
12 or military coups (the biggest political issue of them all), we have a history of taking political
issues to court and expecting a few (good) men to resolve them.

But this merely embroils the judiciary in further controversy as do cases involving disqualification
of politicians; suo motu cases based on newspaper stories about alleged misdoings in
government contracts such as the award of rental power projects or LNG contracts; or even
military coups. Issues which we, as a society, find hard to tackle in the political arena, we expect
three or five (or more) individuals in robes to pronounce upon and in such a manner that it
doesn’t happen in the future.

Take the Asghar Khan case: a political issue of tampering with a nearly 30-year-old election,
which was accepted by all despite its inherent unfairness, came to light because one man
confessed to his role. The confession came once the party, which had been cheated out of its
rightful electoral result decided to accept the result and later, colluded with those who rigged
the election, to return to power.

The result was not challenged politically, but once the confession came to light, an upright
politician (unconnected to the wronged party) sent it to court, where it was kept pending for
years. A few hearings later, it turned out that evidence needed to be collected for which an
investigative agency was called upon. Now the agency is struggling to collect the evidence. But
suppose it even finds the incriminating evidence and the court passes a verdict. Will a
judgement, whatever its contours, prevent such an occurrence in the future?
The judiciary perhaps realises this. Why else would it refer to May 12 in such vague terms:
“...those in government on 12th May, 2007, are today in coveted positions at the highest levels
of government…”? The ones behind the Faizabad dharna, too were mentioned in the same
sentence.

The dharna, too, was a result of politics. Politics which is perhaps far more complex than an
institutional stand-off because the event highlights how all stakeholders, including political
parties, are not averse to using religion to gain support or put down an opponent — religious
issues so sensitive that most of us balk at publicly stating our beliefs. And the role of the media,
which has become a player of sorts instead of holding a mirror to society, and the pressures it
faces. None of these can be simply addressed and fixed by passing a judgement. These will have
to be addressed, over time, in the political arena.

This, however, is not a new occurrence. Historically, we have been in the habit of expecting the
judiciary to resist and change political realities that society has been unable to. Or we expect
judgements on political matters to yield results that can only be determined by politics —
indeed, a judgement cannot prevent dharnas in the future anymore than it can make a politician
irrelevant.

But in recent years, the expectations from the judiciary seem to have grown as has the criticism
of any judgement that is seen to meddle in an area one particular section of society disapproves
of. But the problem is that on either side of the political divide, we continue to drag political
issues to the court — sometimes to embarrass an opponent, and sometimes to expect a legal
judgement to change political history. In either case, the judiciary ends up earning flak. This
needs to end. Let us stop expecting a few men in robes to do what state and society has failed to
achieve — be it stopping corruption, building dams, or fixing politics.

The writer is a journalist.

Published in Dawn, February 12th, 2019

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