follow-up
Swatis love their schools
There is a renewed urge among the girls in Swat to get more education after the attack on Malala
By Tahir Ali
Following years of virtual militants' sway, destruction of hundreds of schools, target killings and especially the October 9 attack on Malala Yousafzai, outsiders think of Swat as a place where female education has become a very difficult and risky enterprise. But apparently these incidents have further ignited the love for knowledge in the resilient Swatis. 

A legacy of fearless activism
Irfan Ali has left a void in the lives of all those who knew him
By Aoun Sahi
He narrowly escaped death when the first bomb went off at Bacha Khan Chowk near FC checkpost in his hometown in Quetta, killing 11 people. Only a few hours after the blast on January 10, Irfan Ali, popularly known as Khudi Ali, became the victim of another terrorist attack on Alamdar Road in which at least 86 people, mostly Hazara Shias, lost their lives.

Yeh Woh
What doesn’t kill us
By Masud Alam
Last week brought Pakistanis face to face with major and immediate threats. Some perceived, one very real
Dr. Tahir ul Qadri’s long march on Islamabad exposed politics as theater of the absurd and seasoned politicians as frivolous and irrelevant actors. It reinforced the popular perception that civilian rule means unbridled corruption and that military rule is lesser of the two evils. Dr. Qadri’s is a one-man show and he has next to none political standing in the country. He is not a charismatic personality or a charming speaker either. And yet he is the subject of every political discussion today. All it took him to overrun established political parties was deep pockets and the ability to mobilise crowds. 

decision
Arresting the prime minister
Is an order to arrest the prime minister in line with the principles established in our 
jurisprudence and followed in criminal law around the world? Or was the order to arrest 
premature — aimed more at embarrassing the government than achieving the ends of 
justice?
By Saad Rasool
On Tuesday, January 15, 2013, the Supreme Court of Pakistan crocheted the latest episode of infamy onto our already tainted national fabric. In a decision that was greeted with euphoria by the Canadian ‘Alam-e-Din’ and his supporters gathered outside the Parliament, as well by a sliver of the ever-devout lawyers, our populist Supreme Court ordered that NAB should “cause [the] arrest” of, inter alia, the prime minister.

Sceptic’s Diary
Of justice, falling heavens and historical guilt
By Waqqas Mir
“Justice shall be done even though heavens may fall”, echoed the honourable Supreme Court mid-week. 
The context: Tahir-ul-Qadri’s Long March, along with his call for sending the government packing, coincides with the Supreme Court’s orders directing the arrest of a serving prime minister.
Now here is the debate. There are some who say that even if you don’t buy into conspiracy theories, the timing of the Supreme Court’s decision was unfortunate if not irresponsible. “This is political point-scoring by the Supreme Court” goes the accusation. Another set of people disagrees. They ask: why should the SC worry about Qadri’s Long March when passing orders? Wouldn’t a decision not to pass certain orders because there is Qadri’s Long March be political too? “How is that not politics?” they go on to ask.

 

 

 

 

 

 

 

follow-up
Swatis love their schools
There is a renewed urge among the girls in Swat to get more education after the attack on Malala
By Tahir Ali

Following years of virtual militants' sway, destruction of hundreds of schools, target killings and especially the October 9 attack on Malala Yousafzai, outsiders think of Swat as a place where female education has become a very difficult and risky enterprise. But apparently these incidents have further ignited the love for knowledge in the resilient Swatis.

According to a social worker in Madyan, who wished anonymity, there are no mentionable hurdles in the education sector but students and teachers somehow feel threatened. "There is a general perception that schools may be attacked, though there is no apparent threat. This fear is evident from the fact that NGOs have been asked to share their data/plans with authorities for security reasons. Polio workers are escorted by the police," he says.

On October 15 last year, when the Khyber Pakhtunkhwa government named the Government Girls Degree College, Saidu Sharif in Swat after Malala, the students of the college campaigned against it until the decision was withdrawn. Locals say they were not against Malala but they thought that associating her name with the college would make them susceptible to militants.

Dilawar Khan, an educationist in Mingora, Swat, sees no visible impact on the enrolment of students. "It has rather increased after the incident. As far as opposition to the renaming of college after Malala is concerned, it was pushed by some political elements and personal vendetta with her and her father rather than by security perception."

Afzal Khan Lala, the famous local nationalist leader from Matta who remained in his hometown despite persistent attacks on him, seconded his thoughts.

"Swat already had good literacy rate irrespective of gender. In fact, the recognition and awards Malala received, has increased the urge for education and excellence among students. Malala was attacked for her advocacy for female education and for opposing the anti-knowledge agenda of militants. The opposition to naming a college after Malala was brought about by prejudice against her achievements and fear of becoming a target of militants," he says.

According to Aftab Alam Advocate and ex-president Swat Bar Association, female education has got a fillip in post-militancy/Malala attack situation in Swat. "Her worldwide acclaim has encouraged other girls. It will not be out of place to point out that for the first time in Swat's history, four female lawyers have been inducted in our fraternity and more such aspirants are in the pipeline," he says.

"Swatis love books, schools and peace. Every visitor to the area will testify that Swatis are tolerant and progressive people and have nothing to do with militancy," says a local, Tahir Shah.

Alam too cited jealousy, political considerations of some locals and fear of attack by militants on the college as reasons for opposing Malala college.

"The importance of girls' education cannot be emphasised. There goes a saying "Mard paray, fard paray but zan paray tu watan paray (if a male reads, it is as if an individual reads but when a woman studies, it is as if a country reads), says Alam.

Nasir Khan, another Swat resident, says these factors had positive impact and rather boosted the morale and vision of the female students in the area. "There was some fear initially but now things have become normal. The students opposed renaming of the college because that would have made them potential target of militants," he said.

The district education officer (female) Swat Dilshad Begum also says Malala is the pride of the area and has motivated others. "There is a renewed urge to get more education. The government has made education free up to the secondary level and is providing free books to students and stipends to girls. The KP government has given plenty of monetary benefits and incentives to all cadres of teachers. We are motivating and preparing them for the task through refresher courses. There cannot be a better opportunity. They should now ensure quality education to their students," she says.

The strength of students has increased. "From 74904 female students in Swat in 2009, the number increased to around 118594 students in 2011. Data for this year is being finalised and it says that the female enrolment has gone up."

There has been no security threat to any school of late. "The government has provided police officials where needed. Again, it has asked all the headmasters and principals of the schools to prepare special entry passes for all girl students. A teacher will be deputed to allow students into the schools after checking their cards," she added.

Swat already had a good literacy rate for both boys and girls. The former ruler of Swat, Miangul Abdul Wadood, had opened a chain of schools for girls. But during their peak days, the Taliban first asked girls to observe strict purdah (veil) on their way to school. Later, they banned girl education and ordered girls' schools to be shut down by January 15, 2009, and threatened to attack the students and teachers who didn't follow the edict.

The Taliban had started their anti-girls education campaign in 2003 which continued for the next four years. They would announce and eulogise the female students on radio who gave up studying. So convincing was their appeal for the naive girls that in 2004, more than 200 girls of high school Charbagh asked for school leaving certificates and tore them there.

In May 2008, the Kabal GGHSS was the first school to be destroyed. With that began a trend that saw the destruction of over 400 schools in Swat. 217 of these were girls' schools. 124 were fully destroyed and 93 of them were partially damaged. As of now 270 schools are fully or partially destroyed, Dilshad Begum informs. Even though the Swat of 2012 is way different from what it was in 2009, still with the militants saying they will continue their campaign, there is no room for complacency within the government circles.

 

 

 

 

 

A legacy of fearless activism
Irfan Ali has left a void in the lives of all those who knew him
By Aoun Sahi

He narrowly escaped death when the first bomb went off at Bacha Khan Chowk near FC checkpost in his hometown in Quetta, killing 11 people. Only a few hours after the blast on January 10, Irfan Ali, popularly known as Khudi Ali, became the victim of another terrorist attack on Alamdar Road in which at least 86 people, mostly Hazara Shias, lost their lives.

It was a coordinated attack; first a suicide bomber blew himself in a snooker club and, after about 10 minutes when people gathered at the place to help the injured, another more powerful blast occurred. Irfan was among those who were killed in the second attack.

A true human rights activist, 33-year old Irfan was very popular among the civil society circles of Pakistan, especially Islamabad where he moved from Quetta only two years ago because of security concerns.

Being a member of the persecuted Hazara community, he was a vocal opponent of terrorist attacks. "He was sitting at the dining table with his family when the first blast occurred. He rushed out to help those injured in the attack. His family members tried to stop him but could not. Nothing could stop him doing so," recalls his cousin Sajjad Hussain.

A brave soul and a true humanist, he always condemned terrorism. He was in the forefront to arrange protest vigils against the attack on Malala and later Bashir Bilour. He was among those few who arranged protests against the killing of Punjab Governor Salmaan Taseer.

He helped those who needed it irrespective of their religion or sect. Irfan was among the few peace activists who stood for Rimsha Masih, the young Christian girl accused of committing blasphemy.

Irfan struggled for realising an inclusive and peaceful Balochistan where people from all ethnicities and sects could live in peace and harmony. He always looked for ways to engage the Hazara youth in positive activities as most of them could not continue their education because of security threats. The words from his Twitter define his personality, "I am born to fight for human rights and peace. My religion is respect and love for all the religions."

Last week in Islamabad, the civil society arranged a sit-in against Hazara killings in Quetta. It was heart-rending to see posters of Irfan's lively and smiling face. Most of the protestors were about the moments they shared with Irfan.

"He was best at making friends. I never saw him angry though he became so upset over the injustices in society," says Faizan Hassan, his friend and roommate. "A few days back, when he watched on television a news about three young girls who were going to be married to end the enmity of their families, he got extremely upset and started giving calls to different people. He couldn't sleep that night and the next day, largely because of his efforts, police saved those girls".

"He often used to say that terrorists do not realise what it takes for mothers to raise their sons," says Hassan.

Irfan Ali was fond of reading diverse books, of different political and religious thoughts, movements and history. He used to quote from sayings of revolutionists, philosophers and verses from different poets. Jaun Elia and Faiz Ahmed Faiz were among his favourite poets. Irfan could not opt for higher studies after graduating because of financial constraints.

If you had met him once, you could not forget him. As news of his death spread on the social media, he was mourned by hundreds and scores of tributes to him started pouring in.

In a tribute to Irfan Ali on her blog, Beena Sarwar, a Pakistani journalist, activist and filmmaker, wrote, "Irfan was vocal and outspoken on many platforms. His presence will be sorely missed but his legacy of fearless activism remains. The best tribute we can pay him is to continue fighting those very forces that killed him."

Ali Baba Taj, his childhood friend, has tears in his eyes while he talks, "He was such a great soul. He could not say no to anybody. I could see him helping the injured after the first attack as I was stopped by security people when the second bomb went off. I started searching for him madly and, after a few moments, I found a body with curly hair."

Irfan could easily settle out of Pakistan like thousands of other Hazara youth but he did not as he wanted to make things good for this country. Saleem Javed, a human right activist from Quetta, tweeted, "He would listen to you and then give his arguments, and most amazingly, with facts and figures, if necessary."

Marvi Sirmed, an activist in Islamabad, says she still feels he would come to her office one day with his smiling face. "He promised me to come back from Quetta in two weeks. I cannot believe I would not see him in Islamabad. He was a central figure in protests against Ahmadi persecution, kidnapping of Hindu girls, and other terrorist attacks."

Marvi recalls her first meeting with Irfan. "Once I announced that I would stage a protest against attack on Ahmsdi worship places in Lahore in 2010. I remember I was standing alone holding a poster against this act at Super Market in Islamabad as nobody joined me. After a few moments, I found him coming towards me with a poster in his hands. That was how our friendship started," she says. "I am sure he has gone to some better world but this world is not so better without him."

[email protected]

 

 

 

 

 

Yeh Woh
What doesn’t kill us
By Masud Alam

Last week brought Pakistanis face to face with major and immediate threats. Some perceived, one very real

Dr. Tahir ul Qadri’s long march on Islamabad exposed politics as theater of the absurd and seasoned politicians as frivolous and irrelevant actors. It reinforced the popular perception that civilian rule means unbridled corruption and that military rule is lesser of the two evils. Dr. Qadri’s is a one-man show and he has next to none political standing in the country. He is not a charismatic personality or a charming speaker either. And yet he is the subject of every political discussion today. All it took him to overrun established political parties was deep pockets and the ability to mobilise crowds.

Peoples Party and Nawaz League are smarting from the insult this visitor from Canada has meted out to them and the so-called liberal media is embarrassed at its own predictions that the Qadri bubble will burst with Dr. Qadri standing alone on Jinnah Avenue on the evening of 14th January. They are collectively terming him and his march a conspiracy against democracy now. Talk to the common man on the street though, and he tells you without mincing words he does not believe anything politicians say.

Dr. Qadri has pushed all political parties to raise their game. If politics is all about filling buses and jalsas (and once in a while ballot boxes), and political debate is what happens on late evening television or telephonic addresses, then Imran Khan can do it, Altaf Hussain can do it, Tahir ul Qadri can do it, and tomorrow if Malik Riaz feels like it, he can do it too. The only way to stop military and its supposed agents from gaining public sympathy is for politicians to clean up their act; to start afresh from the streets of their constituencies, and regain the trust of people. That makes Dr. Qadri’s appearance on the scene not a bad thing at all for Pakistani politics. If he is a threat, it’s not to democracy but to those selling their own brand of democracy.

Court order to arrest the prime minister on graft charges was touted as another grave challenge for democracy. What challenge? If mega corruption scandals are the only qualification for a prime minister, as has been demonstrated, PPP has no shortage of candidates within its fold to fill the position if it falls vacant. Border skirmishes between Indian and Pakistani soldiers, and the hotting up of rhetoric on both sides is however a serious matter that requires military and civilian leaders to sort on a priority basis. But army doesn’t take advice and politicians have none to offer, so we can just hope for the best and prepare for the worst.

The one threat that overshadows all others, and which is potentially far more devastating than a war with India or prospects of military rule, is the impunity murderers enjoy in this country. The one incident last week that actually shook the foundations of Pakistan was the state response to the killing of 119 people on Alamdar Road in Quetta. Not the act of terrorism, mind you, but the cold, detached and almost contemptuous state response to it.

Even a dysfunctional provincial government like KP’s would go to the mourners and shed a few tears with them. Even a writ-less government like that of Pakistan can penetrate the dreaded Taliban and capture the killers of an American journalist. But the mourners of Alamdar Road tragedy had to stage a sit-in along with the decomposing bodies of their dead for four days before they heard a word of solace — if replacing a raving mad and criminally negligent chief minister with a stiff-neck Nawab like Zulfiqar Magsi as the chief executive can be considered a solace. And there is no will, neither a pretence to go after the murderers who have proudly owned up to the carnage.

The Alamdar Road dead have been buried but not forgotten. The blood and puss from their wounds has left an odour that reaches every corner of Pakistani. It woke us all to the realisation that if we continue tolerating one group killing another in the name of religion, one day each one of us will be mourning for our own loved ones. People who came out to protest in dozens of cities in Pakistan and around the world, did not come for Hazaras, or Shias. They came for themselves, and their families. It is now people’s war of survival against terrorists, while the state chooses to fight courts and Dr. Qadri.

Who’s worried about fancy ideals like democracy and national security?

[email protected]

 

   

 

 

 

decision
Arresting the prime minister
Is an order to arrest the prime minister in line with the principles established in our 
jurisprudence and followed in criminal law around the world? Or was the order to arrest 
premature — aimed more at embarrassing the government than achieving the ends of 
justice?
By Saad Rasool

On Tuesday, January 15, 2013, the Supreme Court of Pakistan crocheted the latest episode of infamy onto our already tainted national fabric. In a decision that was greeted with euphoria by the Canadian ‘Alam-e-Din’ and his supporters gathered outside the Parliament, as well by a sliver of the ever-devout lawyers, our populist Supreme Court ordered that NAB should “cause [the] arrest” of, inter alia, the prime minister.

Enough has been said about the speculative conspiracy theories of an unholy nexus between Tahir-ul-Qadri’s impulsive deadlines for change, and the timing of the Supreme Court decision. I, for one, want to resist the temptation to believe in the veracity of such allegations. Seen from the political prism, the timing of the Supreme Court’s judgment is unfortunate. However, I want to continue believing that the honourable Court is not in cahoots with the undemocratic elements within our political diaspora. 

Away from the regrettable timing, the honourable Court’s order must be assessed on its legal merits.

Let me start by saying that, during the course of many months of proceedings before the apex Court, enough material and facts have surfaced that point towards irregularities (even corruption) in the Rental Power Plan (RPP) cases. However, no conviction has taken place yet. If the charges lead to a conviction, through the due process of law, all those who are responsible (including the prime minister) must face the consequences to the fullest extent of the law!

Nonetheless, in the interregnum, it is still important to assess whether Tuesday’s decision is in consonance with the provisions of the relevant law (the NAB Ordinance)?  Or, instead, has the order circumvented the procedure laid down in the NAB Ordinance? Is an order to ‘cause the arrest’ of the prime minister in line with the principles of “arrest” established in our jurisprudence and followed in criminal law around the world? Or was an order to arrest premature — aimed more at embarrassing the government than achieving the ends of justice?

For those unfamiliar with the language of the Court’s Order: on Tuesday, a three-page order of the honourable Supreme Court 1) chastised Chairman NAB for the removal of DG NAB Rawalpindi and two IOs associated with the investigation of the RPP cases, 2) observed that “prima facie” the IOs are “not being allowed to ensure the implementation” of the court’s judgment, and 3) directed the “Additional Prosecutor General, NAB” to “undertake” three things, namely a) “submit Investigation Reports to the concerned authorities”, b) “get approved the challans/references against the accused” and c) “cause their arrest”. 

A familiarity with the NAB Ordinance will reveal that it is hard to comprehend why the Supreme Court has “directed” the Additional Prosecutor General to undertake these tasks, when the law does not bestow such power upon him. Section 8 of the NAB Ordinance appoints a Prosecutor General whose mandate it is to “give advice to the Chairman NAB upon… legal matters” and perform other “duties of legal character” as “referred or assigned” by the Chairman. And the PG, with the approval of the Chairman, may appoint Additional PG “to institute or defend cases”. In effect, the Additional PG is (one of the) lawyers of NAB, and has no legal mandate in terms of administrative work — especially not without the express directions of the Chairman. 

Instead, per section 18 of the NAB Ordinance, it is the sole prerogative of the Chairman (or an officer authorised by him) to initiate proceedings, inquire, investigate, and/or arrest the accused (if enough tangible evidence exists). And the superior courts have held that before ordering an arrest, it is the Chairman who must be satisfied that tangible and credible evidence exists against the accused (Asif Marghoob Siddiqui v. FoP (2008 MLD 1735)). 

Specifically, as held in numerous judgments (e.g. Aqil Lotia v. Daily Ausaf (PLD 2007 Karachi 587)), arrest of a person, under the NAB Ordinance, can be done at three stages: 1) under section 18(b) of the NAB Ordinance, in case the Chairman forms an opinion that “reasonable” or “credible” reasons exist for an arrest, 2) under section 18(e), for “the purpose of inquiry or investigation”, in case the Chairman is satisfied that conditions of s. 54 of Cr.P.C. are fulfilled (section 18 of NAB Ordinance further stipulates that “no person shall be arrested without the permission of the Chairman or any officer duly authorized by the Chairman”), and 3) under section 24(a), at the sole prerogative of the Chairman. 

The Additional Prosecutor General does not figure into this equation at any place.

It is thus surprising that the Supreme Court assigned duty to “cause” the arrest of the accused, to the Additional PG. Why the need to circumvent the powers and prerogative of the Chairman? If the Chairman is not performing his duties, he should be taken to task… but the provisions of law cannot be obfuscated to achieve the desired ends. Is the ‘process of law’ not as much a part of ‘justice’, as the end goal? And even if efficiency necessitated the assigning of this responsibility to another officer, why not pick someone from the administrative hierarchy of NAB, rather than the Additional PG, who has only a narrow and defined role under the law?

Turning now to the need for ‘arresting’ the prime minister. 

In criminal jurisprudence (domestic as well as international) the power to arrest a person is exercised in broadly two situations: 1) upon conviction, as a punishment, and 2) at the pre-conviction stage, in order to meet certain ends of justice.

What are these ends?

Keeping in mind the deprivation of liberty that entails arrest, especially prior to being convicted (remember: innocent till proven guilty!), the law allows the arrest of a person for very narrowly specified reasons that include situations where the accused is charged with a heinous crime, or has not joined the investigation, or is not cooperating with the authorities, or in order to make recoveries from his person, or to obtain evidence, or to prohibit the person from absconding, or (in a few situations) to encourage other culpable individuals to surrender, or to prevent the destruction of evidence or harassment of witnesses. Barring these exceptions, and a credible case against the accused, bail is granted as of right.

None of these grounds have been alleged against the prime minister — either by NAB or the Supreme Court.

Let us not lose sight of one simply fact: Raja Pervez Ashraf (the then Minister for Water and Power) is one of the ‘accused’ in the RPP case… he has not been ‘convicted’ of any offence as yet! The charge against him is one of ‘misuse of authority’. And, as widely reported, he has joined the investigation before NAB.

In light of these circumstances, and the parameters of jurisprudence, why the need to order the arrest of the prime minister? Is he withholding evidence or likely to destroy it, were he to roam freely? Is it likely that he will flee, as the prime minister, and never return?

Or is the ‘direction to arrest’ simply a populist order, aimed at embarrassing the prime minister? A final blow to the disintegrated moral authority of the government. An attempt to ensure that any action done by the prime minister from hereon end, domestically or internationally, is seen as the conduct of a tainted man. And that too, at the twilight of the parliamentary tenure, just weeks before the interim government and the elections, with one eye on the dharna staged a hundred yards from Court Room 1. 

Many anchors and analysts, from all sides of the partisan divide, have accused the honourable Court of playing to the gallery, attempting to recapture the spotlight of the media, and courting the non-democratic forces in an election year. 

I do not believe that. 

But this kind of a decision, delivered precisely at a critical juncture in politics — by a court that has its finger on the pulse of the nation — makes it impossible to defend the court against allegations of conspiracy.

The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School. He can be reached at: [email protected]

 

 

 

 

 

 

   

 

 

Sceptic’s Diary
Of justice, falling heavens and historical guilt
By Waqqas Mir

“Justice shall be done even though heavens may fall”, echoed the honourable Supreme Court mid-week.

The context: Tahir-ul-Qadri’s Long March, along with his call for sending the government packing, coincides with the Supreme Court’s orders directing the arrest of a serving prime minister.

Now here is the debate. There are some who say that even if you don’t buy into conspiracy theories, the timing of the Supreme Court’s decision was unfortunate if not irresponsible. “This is political point-scoring by the Supreme Court” goes the accusation. Another set of people disagrees. They ask: why should the SC worry about Qadri’s Long March when passing orders? Wouldn’t a decision not to pass certain orders because there is Qadri’s Long March be political too? “How is that not politics?” they go on to ask.

So who is right?

Here is my answer: neither side is wrong, and, without realising, they agree on the inherently political role and nature of the Supreme Court. And I see that as a good thing. We need to strip ourselves of naivety that alleges that the apex court lives in some kind of bubble where politics has no place. We need to accept that the Supreme Court of Pakistan, like the US Supreme Court, is a political actor. It may not carry cards of political parties but it is political.

A supreme court, wherever it may be, often has to make deeply and inherently political choices. It is shaped by national politics just as much as it shapes national politics. Its political choices and its own politics are reflected in high-profile matters — be it those involving questions of constitutional interpretation or treatment of high-level state functionaries.

So yes, when someone wishes that the SC hadn’t ordered the PM’s arrest because Qadri is in town with his rhetoric, s/he is not being unreasonable. All that people are asking for is that the SC could have been smarter with its politics at this stage.

Remember the “justice shall be done even though heavens may fall” bit I mentioned at the start? Well, that is another bit of rhetoric we must engage with and actively counter. Regardless of the honourable CJ saying that the SC is not affected by what goes on outside the Court’s four walls, the simple answer is: oh yes it is!

Here is how.

In times of war or internal conflict, superior courts are less zealous about enforcing civil liberties. Reason? The nation is at war so let’s be cautious. Alternatively: justice can go fly a kite since something else (national situation) matters more. When SC legitimised military coups, and some Justices serving presently did this, were they looking to the heavens or justice? Were they not influenced by what was going on in the country? Why lose sight of that to protect democracy if you relied on it to further dictatorships?

When our SC decided in the 1990s whether dissolution of parliament was justified, it was of course affected by what went on in the country. Even the judgment call whether affairs of the federation can be carried out in accordance with provisions of the constitution requires a political decision. A political choice. It boils down to what you see as important for politics. When it takes suo moto action, it is affected by media and it looks into certain cases but not at others, isn’t the SC precisely being affected by what goes on outside its four walls?

Why do you think the SC upheld criminalisation of certain conduct by Ahmadis in the Zaheeruddin case? Why do you think it won’t uphold a free speech claim challenging blasphemy legislation? Only because it is keeping an eye on the politics surrounding these matters. Definitely not on justice. Forget about the bravado regarding heavens falling. A lot else will fall if the SC is seen as anti-people — and by people I mean a majority of Muslim population.

So let’s not kid ourselves that justice is all that matters.

Yes, when we ask for restraint we are asking the SC to make a political choice but a smart political choice. Whether it likes or not, the SC bears the burden of its own history. Smart politics requires forethought, a sense of responsibility, a sense of the weight of history. That is where the apex court’s decision betrays sound judgment.

The test of sound judicial politics cannot and should not be whether you can get away with decisions you make. Institutions must serve larger aims. Institutions such as apex courts have a sensitive role to play, particularly in nascent democracies. Their desire to influence their times cannot be allowed to damage other institutions and procedures essential to an enduring democratic tradition. If ordering arrests was avoided in the Asghar Khan case, there was nothing that stopped the SC from showing restraint regarding the PM too.

Anyone who focuses merely on the legality of decision making by an apex court is being hopelessly naïve and opening pathways full of peril. A legal justification can be found for even the most damaging decisions and our history has no shortage of those. Perceptions matter just as much as intentions and one hopes that the apex court will remind itself of this all-important fact.

And timing of a decision is often just as important. It’s like a marriage proposal: if you do it at the right time, you reap the benefits. If you mess it up, no one forgets it.

Regardless of the debate about the efficacy of judicial activism, we can all become less naïve by agreeing that the Supreme Court is a political actor. Let’s bid goodbye to this tradition of believing that independent judiciary somehow means non-political or worse anti-political. We need to move past the discourse that suggests that debating the politics of the judiciary somehow taints judges. They are political and so are their decisions. And we the citizens of this country have a right to demand politics of the kind that favours what we are trying to build rather than politics that reminds us of a dark past.

Memories, particularly memories of a nation, can be deeply unforgiving. And the SC must avoid bringing back the nightmares. Otherwise all future judges will be buried under a burden of historical guilt they may not be able to shed.

That will be deeply unfortunate.

The writer is a practicing lawyer. He can be reached at [email protected] or on Twitter @wordoflaw

 

 

 

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