Public court – the ultimate court?

2017-08-14T22:37:15+05:00 Agha Baqir

What options do people have in case institutions are not working properly or not functioning at all in any part of the world? This can also be applicable to courts, both judicial and peoples’ courts. Judicial courts are assigned jurisdiction by the constitution itself to decide contentious matters brought before them by litigants, whereas the public court is assigned to decide the political question of a nation, political groups or a community such as elections, nominations, referendums, division or even creation of a new state like Pakistan was once.

In the recent past, certain incidents in India were seen where a group of people assumed the role of a judicial court when they summarily passed and executed a verdict against a Muslim family around Dehli, which was alleged to have slaughtered a cow and used its meat against Hindu principles.

Conversely, on the same land, the Muslims of India passed, perhaps, a wise judgment when the Muslim League under the leadership of Quaid-i-Azam, Muhammad Ali Jinnah, asked the important question of partition of the Subcontinent into two separate independent states – a Hindu state and a Muslim – to the Muslims of India instead of approaching British or Hindu judicial courts. Muslims decided on independence as they had reached the conclusion that they could not live with other communities by having different, nay conflicting religions and way of life.

Subsequently, the history of Pakistan is full of both positive as well as negative decisions made by both public and judicial courts. A segment of the then public court, perhaps, initially welcomed the judgment passed by Justice Muneer in Maulvi Tamiz-ud-Din’s case but widely criticised it in the years to come. Z A Bhutto’s case has also, perhaps, met the same treatment. Public courts initially clapped for the martial laws of Ayub, Zia and Musharraf against civilian governments but later vowed to oust them by all means.

There seem to have been some mistakes made at the hands of public, judicial and other institutional courts. In some cases, the situation was very clear but in others, it remained ‘a chicken and egg’ situation where it became very hard to decide whether the egg was broken first or the chicken came first. Considered too backward to make good decisions, the general voter was not allowed to cast his vote directly to elect his representatives to the National or provincial assemblies. A general voter would elect only his local representatives who in return would elect representatives for the upper assemblies. But in 1971, Z A Bhutto conferred the general people the choice of a direct vote to elect their representatives to the upper assemblies through a system of general franchise. Had the backward voter now attained that level of maturity and quality required for election of a healthy candidate? Or, had he attained today, that level of quality of choosing a good representative that various organs of state should ultimately refer themselves to the general voter or the public court?

One school of thought believes that even though an educated segment of public court has attained that quality of vote – it can elect based on sensible choice, but it hardly bothers to come out to participate in national political decisions. Therefore, the other larger segment which is still not substantially qualified to make a good decision is swayed by political parties to their benefit by way of kinship ties, feudalism, parochialism, ethnicity and for personal motives. Thus, this school feels that the public court is not actually a healthy court to elect or adjudicate politicians to make decisions, not for themselves but in the interest of their electors. It believes in necessary interventions at the level of election or even audit and detection of undesired elements.

Another school of thought believes that it is only the people who have to elect, audit or remove their elected representatives based on their performance and that other institutions need not to intervene in their affairs. It regards any such interventions as violation of the sanctity of the vote granted to the public court. It believes such public courts to be absolutely healthy and the best forum to make the ultimate decision. It believes that the decision of such public courts should be respected and their representatives allowed to complete their tenures to accomplish their policies and projects, to be ultimately gauged by the public court itself at the time of their re-election or otherwise.

Yet another independent school of thought believes in the principle of checks and balances of various organs of the state – legislature, executive and judiciary – as provided by the constitution and its fair implementation without any whimsical, arbitrary and prejudiced manifestation.

The deposed prime minister raises certain questions. He terms his deposition as a pre-planned move and relies upon invoking the public court, which according to him provided him the mandate and that cannot be snatched by other organs. He has faith in his projects. He feels agony of the other prime ministers, deposed or executed in the past, and seems determined to bring about necessary changes in the constitution.

Although, a few prime ministers were deposed in the recent past, the judiciary and the establishment have shown extraordinary restraint in intervening in the continuity of the political system. In the previous regime of PPP, the judiciary under Iftikhar Ahmed Chaudhry and the army under General Pervaiz Kiyani were ever committed not to derail the political system despite having grave differences with the political leadership. The Army perhaps, is seen to have decided to keep itself aloof from direct political interventions and resort to professionalism to serve the country within its assigned role. And for independent circles, it may sound acceptable at length and perhaps, ideal to reconcile the situation in the country where the voter is yet to attain that level of freedom to exercise his right of vote. That also seems to be a safety valve between martial law and invocation of 58(2)b of the constitution which used to warp the whole system in the past. A constructive opposition is one of the ingredients of true democracy and one of the most effective forms of checks and balances. The Charter of Democracy may play an effective role by way of unity of thought in the policies beneficial to the people and not the parties concerned with getting united and friendly for themselves and against the interest of the public court in the name of the parliamentary form of government. It is in the interest of the political parties themselves to not only protect sanctity but also the quality of their voters by equipping them with necessary political health to choose and protect their representatives. This is where the public court may become the ultimate court. And this is what Independence Day merits.

 

The writer is a socio-political analyst.

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