Last week, the Supreme Court of Pakistan released its order detailing the reasons for rejecting the appeal of Prime Minister Gilani against his indictment on contempt charges. Authored by Justice Jawwad S. Khawaja, the order by the eight-member bench puts in perspective the spurious debate around the issue kicked up by the one-eyed champions of democracy. These half-baked democrats with a thick icing of insincerity are quick to scream about the judiciary-executive tussle, supremacy of Parliament, judicial over-reach and derailment of democracy whenever an attempt is made by the apex court to hold the erring government accountable for its unconstitutional acts. They would have us believe that democracy has nothing to do with the rule of law and our elected representatives have the privilege to flout the Constitution; disobeying court orders with pride, slapping Election Commission officers and breaking the legs of school teachers who do not submit to their above-the-law status.

Elaborating upon the constitutional imperative, the order states: "He (the Prime Minister) has, in his grounds of appeal, asked the court to ‘show greater restraint and forbearance with respect to a duly elected Prime Minister.......when the very stability of the democratic system obtained by the people of Pakistan after so much sacrifice, may depend on the outcome of this case’.” This averment, coming as it is from the Chief Executive of the country appears to be based, firstly, on a claim to some special privilege that accords the appellant preferential treatment by sheltering him from receiving equal treatment in accordance with the law and the Constitution, and thereby allowing him to disregard the orders of the court because of his office. And, secondly, it calls upon the court to formulate its opinion, not in accordance with the mandate of law as applicable on the facts of this appeal, but in fear and anticipation of a possible outcome that may flow out of a decision, which may be arrived at by the learned trial bench on the basis of the law and the Constitution. In other words, the appellant is urging this court to resurrect and adopt a form of the doctrine of necessity, which in the past had blighted constitutional rule in Pakistan.

The reasoning of the Prime Minister, echoed by the army of loyal ‘yes-men’ and ‘yes-women’ populating his party, as well as various one-eyed commentators infesting the media, exposes a lack of basic understanding of democratic principles. For the 'all-supreme' cause of not rocking the rat-infested boat of our elected government, they would like the Supreme Court not to do its constitutional duty of deciding the case according to the law and Constitution. The reasoning is simple: If the Prime Minister violates the Constitution, the Supreme Court should violate it as well in order to save his skin and, hence, the system. These one-eyed champions would like to put the entire burden of 'saving' our oh-so-fragile democracy on the shoulders of the honourable judges, while giving a carte-blanche to the so-called democratic government. Shouldn't they be advising the Prime Minister to save the system by not flouting the Constitution?

As noted in the detailed order: "If the appellant apprehends instability as a consequence of this case, such apprehension can easily be allayed by ensuring that the Constitution is adhered to.......The appellant may also draw comfort from the fact that institutions and systems provided in the Constitution ensure political stability. What happens to an individual can be of little consequence as long as State institutions continue functioning in accordance with the Constitution."

And this is the distinction that all the well-wishers of democracy must learn to make. Somehow, the entire discourse on democracy in Pakistan has been turned topsy-turvy by insincere opportunists and ignorant commentators, who have created the impression that democracy is another name for the government of the day and individuals running it. In their tainted eagerness to save democracy, they are ready to condone any act of the incumbents, no matter how unconstitutional, criminal or undemocratic. And any effort to confine these powerful individuals to their constitutional role and to hold them accountable is viewed as an attack on the democratic system itself. The PPP-government has actively promoted this view of democracy by constantly harping on conspiracies against democracy and vowing to complete its tenure, as if the survival of democracy depended on it.

Rather than giving any special licence to those in power to violate the Constitution as demanded by the Prime Minister in his appeal, the Supreme Court order points out that the onus of responsibility to uphold the Constitution is greater on holders of high constitutional offices and more stringent legal standards are applicable to them as compared to ordinary citizens. In fact, the government must set an example of promoting the rule of law, rather than hiding behind high offices to trample upon the Constitution. The order provides a valuable insight that should bring an end to numerous misguided debates regarding the role of judiciary and its relationship with the executive: "We may at this point add that there is no conflict in the respective roles assigned to the executive and the judicature, and nor is there any room for institutional or individual egos to create one. All that is required is the humility to recognise that these institutions and their functionaries are in the service of a common master, the people."

It further states: "It is thus clear that our constitutional order is founded on the fundamental instruction that each organ must give effect to and act in accordance with the Constitution. Insofar as an act of any one of the organs of the state travels beyond the limits laid down in the Constitution, the said organ can be said to have strayed from representing ‘the will of the people of Pakistan’. Conversely, in so far as all organs of the state remain within the limits prescribed by the Constitution, they have a legitimate claim to being enforcers and exponents of the will of the people. Our Constitution conceives of an order wherein the various organs of state are co-equals, each manifesting the will of the people and giving effect to such through adjudication, executive action or legislation. It is important that the primacy of the Constitution over the government as also over the judicature be fully understood."

The writer is a freelance columnist.

Email: hazirjalees@hotmail.com