Discretion, valour and over-egged puddings

By Feisal Naqvi

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 dont 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 countrys 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 justices 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.