War is too serious a business to be left to the generals.” By corollary, law is too serious a business to be left to the judges. The current confrontation between two apex institutions in the country is another unwelcome reminder of how fallacious our understanding is of a modern functional democratic society.

In their haste to outdo each other, a bench of the Supreme Court tried to take the government to task while the matter was still before a High Court. In turn, the parliament rushed in to change a decades-old practice in a two-hour session. Fools indeed rush in where angels fear to tread. This haste has created a logjam. We are now at a constitutional impasse and face a legal quagmire. The bench is acting out its powers of judge, jury and the executioner. The detailed instruction to the central bank to make payments in a specific manner by a specific date and time, without provision to evaluate the risks or to go into appeal is akin to a court directly instructing the hangman on how to tie the knot, remove the support and let the body hang. The parliament, on the other hand, claims to be the inheritor of fiat,passing laws in an instant without having the patience for settling debates, both inside the House and out in the public arena. 

The government claims that the state of Pakistan is facing serious threats, financial as well as terror-related physical. This is prima faciethe reason for not being able to conduct elections in the enunciated 90-day period. Politicians are hardly known for telling things as they are and the political class have come up with excuses that sound less than convincing, especially since the government is still spending money on laptop give-aways and other similar schemes. It is possible that they are masking the real reason because a part of truth might be perceived as surrender and rob them of their political capital and the other part, that there is a real emergency, is not tangible and is impossible to prove without physical evidence.

While lawand order are often used together, it is important to understand that order is a precursor to law. There could be no law without order and so when things collapse, it is important to restore order before the principles of law can be upheld. The government is simply trying to preserve order which has been a deliberate target of those not in government. This is not even hidden agenda: bringing the government to its knees; making things dysfunctional and forcing the government to abdicate power is a pronounced objective.

The assumption that law operates at a higher moral plane than politics is misplaced since laws are nothing but political decisions of yesteryears.

The government can easily declare an emergency by letting chaos surface. However, this will erode political good-will of those in power, not to mention the immense human suffering that it will cause, though it will provide tangible evidence of the emergency to the bench and the wider commentariat.To be honest, judges cannot be blamed for not having a finer understanding of the current crisis. Given their steel-clad financial protection - no petrol to pay for and no energy bills to worry about- it is quite possible that they are unable toguage this economic emergency.

In the common law tradition, laws always need interpretation and application of mind. A judge can never be a prisoner of the text. The constitution does talk of a binding responsibility to hold elections in 90 days, but it also mentions that the exercise does not get invalidated if there is a lapse. The possibility of a time lapse is foreseen and addressed in the constitution. Truth at this juncture needs to be assessed rather than seen. The benefit of doubt for assessment of the situation then, has to be given to those constitutionally trusted for administrative decisions - and those are not the judges. ('the' added before judges).

The assumption that law operates at a higher moral plane than politics is misplaced since laws are nothing but political decisions of yesteryears. Legal battles fought by mercenary lawyers do not help either. GenMusharraf and the regime that worked to get him the death sentence had a common law minister. The same lawyers who fought to save the family of Sharifs are now fighting to save his bitter opponents. The claim that they are professionals is not untrue, but it is quite akin to the mercenary soldier’s whose only loyalty is to the paycheque. Mercenary armies lead to perpetual battles and have no role in peace. It is no different with mercenary lawyers, for it creates a culture where the moral compass reaches its northpole.

The writer is the director of Management Studies Department, GC University, Lahore. He is currently on leave.