And the meek shall inherit the earth
Muhammad Hussayn

The great thing about destiny is that nobody can ever fully fathom it. No, not even in this most measured, recorded and analysed of centuries. And yet, this is precisely where analysts locked in the rationalist paradigm get it wrong. Unable to accept this reality, they slide and stumble, round and round in circles.
During a hearing of the RPPs case, the Supreme Court “direct[ed] the Additional Prosecutor General, NAB that he ... during the course of day ... get approved the challans/references against the accused persons and ... cause their arrest without any hesitation.” The “accused persons” refers, amongst others, to the man who was the minister for water and power a little while ago and is now the prime minister of the country.
Unsurprisingly, the order has set tongues wagging and heads rolling. Indeed, the cry of “judicial over-reach”, raised by the court’s far too numerous critics, can already be heard from afar.
Some have even gone so far so as to term this another ‘judicial coup’. Putting the PM behind bars seems deeply reminiscent of what unfolds after a military coup, much like what came to pass on October 12, 1999. But this is in fact different. Not only because it is judges who gave the order instead of a uniformed general. Rather, it is different because this time around it is legal and constitutional.
Questions were indeed bound to arise, given the momentous nature of the decision – which itself comes with an ominous baggage reverberating the events that brought the prime minister to power in the first place – and its synchronicity with Dr Qadri’s speech at the ‘long march’. Yet when it is analysed legally, the decision is neither a disturbing surprise, nor a momentously unsheathed tactic, as the critics make it appear.
Every constitutional judgement has both legal and policy underpinnings. Let’s begin with the legal aspect.
For a moment, forget who the accused is and what time of the election year this is. Stripped of these extraordinary facts, the SC’s extraordinary order is rather ordinary. Legally speaking, it is a simple case of the well-known ‘writ of mandamus’, a remedy our superior courts grant on an almost daily basis. There is nothing here that departs from the usual course of proceedings heard before the superior courts. To make things clearer, let us cite the legal and constitutional provisions.
First, Article 199(1)(a)(i) allows the high court to “make an order... directing a person performing... functions in connection with the affairs of the Federation... to do anything he is required by the law do.” Second, Article 184(3) allows the Supreme Court, in certain cases, to exercise the same power as the high court – even a little more.
Third, according to Section 24 of the NAB Ordinance, “[t]he Chairman NAB shall have the power, at any stage of the inquiry or investigation under this Ordinance, to direct that the accused, if not already arrested, shall be arrested.”
Now, the Supreme Court’s order, lest it be misconstrued, is not directed to the prime minister. It is directed to the additional prosecutor general of NAB, who is clearly a person performing the said functions in connection with the affairs of the federation. What then does the law require him to do? Since there was an inquiry pending against him, Case No.2 (3-RPP)/SOD/2012/NAB to be precise, PM Ashraf could have been arrested at any point in time, ever since the inquiry started.
Why the chairman NAB chose not to do this himself will be known only to him. But the reason is not so hard to guess, is it? Who in the present state of rot that prevails in the Islamic Republic would go around messing with sitting ministers and the prime minister for such small matters as a multi-billion rupee corruption scandal?
Who except the chief justice, that is. And that is exactly what happened. After several fruitless hearings, the court finally decided to pull the trigger and direct a senior NAB official to do what the law always required him to do – arrest the principal accused in a long-standing inquiry. How can this be called unconstitutional?
And lest we be mistaken, unlike the NRO implementation case involving the president, there is no question of immunity involved here. Article 248(3) clearly states: “No process for the arrest or imprisonment of the president or governor shall issue from any court during the term of office.” Read again. There’s no mention of the prime minister or cabinet ministers in this clause of Article 248, even though the same are mentioned in 248(1).
Clearly, the framers of the constitution had no intention to extend such immunity to ministers and prime ministers. They could very much envision prime ministers being arrested by unelected civil servants.
Yet, there’s no wishing away the fact that this decision is indeed unusual. Not in every country do courts order the arrests of democratically elected leaders. But this has nothing to do with some disingenuous legal interpretation on the court’s part or badly framed law. The problem is that our political class seems to be made of tougher stuff. While in other democracies, a PM would resign if so much as a serious taint of corruption were to touch his/her person, flouting the strict confines of the law is a mark of privilege in our political culture.
Thankfully, the Supreme Court’s bold decisions, including this one, are now changing that culture, if only bit by bit. For the present though, critics can still feign surprise at a big kill and get the benefit of the doubt. That prime ministers too are equal before the law is a tough thing to digest.
But it is time we accept that the promises of the constitution are real. Maybe the ‘long march’ that no one ever reckoned to succeed just provided us with the backdrop of a vigilant and demanding citizenry that was needed to make it happen. Thus the perfect synchronicity in timing.
What critics locked in a rationalist paradigm do not seem to accept is that sometimes the shadiest of situations bring to light the noblest of principles. And sometimes, the meek do inherit not just the kingdom in heaven but also the kingdom on earth. Opportunities like these are rare and must not be lost. The court has seized the moment. Will others?
The writer is a lawyer and researcher based in Islamabad.