Curiouser and Curiouser...
By Najam Sethi
February 15-21, 2013
When Dr Tahirul Qadri, the maverick dual national crusader for true democracy "after delaying the elections to cleanse the system", struck Pakistan like a bolt from the blue last month, pundits were quick to speculate about his "true motives" and the "hidden hand" pulling his strings. In fact, Dr Qadri stoked the conspiracy theories by insisting that the military and judiciary were legitimate "stakeholders" in the system and should be formally consulted on how to reform the Election Commission of Pakistan (ECP) and establish the caretaker administration to oversee the elections. The Supreme Court (SC) provided grist for the mills when, midway through Dr Qadri's Islamabad dharna, it directed the National Accountability Bureau (NAB) to arrest Prime Minister Raja Pervez Ashraf for alleged corrupt practices, prompting Dr Qadri to claim that the SC's decision had resolved "half his agenda" while the rest would be sorted out later, an allusion to collusion with the "establishment".
Now we know that the SC is not impressed by Dr Qadri's revolutionary rhetoric or amused by his political antics. It has firmly rejected a petition by Dr Qadri praying for the dissolution of the ECP because it was not legitimately constituted. The SC has spurned the petition because the petitioner lacks locus standi by virtue of being a dual Pak-Canadian national. In fact, the SC has chastised Dr Qadri for having the audacity to meddle in Pakistan's constitutional matters while pledging loyalty to the Queen Elizabeth II who is technically the Sovereign of Canada.
This is a radical judgment for two reasons. First, there is nothing in the constitution that bars a dual national from petitioning the courts on constitutional matters. In fact, the constitution recognizes dual nationals as bona fide citizens of Pakistan enjoying full property and voting rights and only bars them from being elected as members of parliament. Therefore the SC is seemingly setting a new bar on the rights and privileges of dual nationals that is not laid down in the constitution. Second, the SC's aggressive questioning of Dr Qadri's patriotism and political credentials - it went so far as to berate him for trying to destabilize the system - has served to sidestep the legal merits of the case and emphasize politics instead. The court did not allow him to argue the case with reference to Article 184(3) of the Constitution relating to fundamental rights and public interest. Nor did it refer him to Article 199 whereby a quo warranto writ challenging the appointments of the members of the ECP should be lodged at the level of the High Courts rather than the SC. This has provoked Dr Qadri to burst out indignantly against the SC in general because his case was not heard on merit and Chief Justice Iftikhar Muhammad Chaudhry in particular for haranguing him about his loyalty to Canada - Dr Qadri counter-accused Justice Chaudhry of being a Provisional Constitution Order (PCO) judge for legitimizing the 1999 coup of General Pervez Musharraf and questioned his loyalty to the Constitution!
The mutually hostile court proceedings, including the judgment and the follow-on comments by both Dr Qadri and the CJP, have soured the debate. The CJP has warned Dr Qadri to hold his tongue and beware contempt of court action but Dr Qadri has angrily heaped more scorn on the court. Therefore the matter is not closed. Both men are known to dig their heels in at times such as these.
Dr Qadri has two legal options and one political choice. On the legal front, he can either file a review appeal before the SC or get a non-dual Pakistani national belonging to his Pakistan Awami Tehreek to file a new petition in the SC that doesn't attract the ire of the court on locus standi. Or he can go straight to the Lahore or Islamabad High Court in pursuit of justice vide Article 199 where he can make out a strong case against the ECP on technical grounds. On the political side, he can stand up and solicit imprisonment in the hope of becoming a hero for standing up for the rights of millions of dual national Pakistanis abroad whose sweat and blood props up the Pakistan economy by way of billions of dollars in Forex remittances as well as for the millions of Pakistanis at home who share his demand to clean up the electoral system and make parliament more functional by blocking the entry of cheats, liars and thieves.
The multiple ironies should not be lost. Originally Dr Qadri eulogized the SC and demanded a stake for it in decision-making about elections and caretakers. Now he has blasted it for betraying his trust. A section of the media that eulogized Dr Qadri for raising his voice against perfidious parliamentarians is now castigating him for contemning the SC. And those who alleged an unholy nexus between the SC and Dr Qadri in order to delay the elections are eating humble pie. The conspiracy is getting curiouser and curiouser.
Najam Sethi is editor of The Friday Times