Supreme Court’s decisionism resembles a Schmittian position on law and sovereignty. Carl Schmitt was a German legal and political theorist who justified constitutional dictatorship and, later on, Nazism through his conception of the sovereign who decides exceptions
"Ethics and politics…..start with undecidability.”
Since the Supreme Court’s NRO verdict, Prime Minister Yousaf Raza Gilani has demonstrated an inscrutable posture of undecidability towards the law. On the one hand, he has repeatedly spoken of and twice demonstrated his respect for the law. But, at the same time, he refuses to follow the court order to revive the Swiss corruption case against President Asif Ali Zardari.
How should this gesture of undecidability towards the law be understood and interpreted? Is it merely tactical and an indicator of political expediency? Perhaps. It is impossible to imagine politics stripped of the deep play of contest and competition. Prime Minister Gilani is after all a politician who unmistakably revels in the play of politics.
However, there must be more to this indecision than mere political gamesmanship. Jacques Derrida, the renowned French philosopher, defines undecidability as the possibility of justice and responsibility to the other. He employs the concept of aporia as the signifier that undecidability is necessary enroute to the reaching of a just and responsible decision.
Aporia is an ancient Greek term (a-poros) which literally means ‘without passage,’ ‘impasse’, or ‘dead end’. The ancient Greek philosophers, particularly Socrates and Aristotle, used the concept of aporia to unravel contradictions, limits or puzzles. Similarly, in the field of rhetoric, aporia is a device to cultivate doubt or demonstrate difficulty in choosing.
For Jacques Derrida, aporia is imbued with the double bind of ‘impossible-possible’. A non-passage is the only passage. In other words, aporia is an impasse to be passed. If there was no aporia, Derrida argues, we wouldn’t find our way. Therefore, aporia is not something that is necessarily a failure or paralysis. Rather, it implies the endurance to pass through non-passage or a dead-end.
What is precisely PM Gilani’s aporia?
To write or not to write, is the name of his aporia. The perils of both options are very apparent. If the letter is written, presidential immunity is threatened, as the Supreme Court appears to want.
In such a scenario, not only will the presidency be subject to legal siege but the policy of political reconciliation would also be dealt a serious blow. Unlike the decade of 1990s, the presidency has so far proved the bulwark of political reconciliation and parliamentary democracy. Hence, any constitutional crisis around the presidency at this conjuncture of democratic transition could signal the start of a politics of closure, or, in other words, the death of democracy.
In addition, the decision to write the letter must be deeply troubling to PM Gilani’s conscience and his sense of moral integrity. He has commented several times to the press that, after Farooq Leghari, he would not like to become the second Judas to his party from the Seraiki region. He has also spoken frequently about the excesses of law against President Asif Ali Zardari who spent eight years of his life in prison without conviction.
However, if the letter is not written, Mr. Gilani himself will be exposed to the rage of law. Being the elected Prime Minister, he symbolizes the demos and parliament. He is required at the utmost to support and uphold the rule of law. More importantly, his defiance of the law could lead to state institutions being plunged into a kind of legal civil war. The possibility of such legal civil strife is foreshadowed by the incessant daily coverage of court proceedings by the media.
He is thus destined to undergo and endure the ordeal of undecidability in the face of the impassable. The aporia of indecision enables him to continue calculating the incalculable to avoid the worst. For this purpose, he is required to oscillate between determinate possibilities in order to resist closure to ethics and politics. Undecidability keeps the future open.
It would be pertinent here to compare his aporetic experience with the fervent decisionism of the court. First, there is the unanimous nature of the NRO verdict. There is not a single note of dissent in the verdict. Secondly, the court appears hell bent on getting its decision implemented. In its haste, it has already charged Prime Minister Gilani with contempt of court.
The court’s decisionism resembles a Schmittian position on law and sovereignty. Carl Schmitt was a German legal and political theorist who justified constitutional dictatorship and, later on, Nazism through his conception of the sovereign who decides exceptions. For him, the sovereign simultaneously constitutes and destroys the law for the sake of (new) political order.
The singular and repeated demand of the court to write the letter illustrates its will to sovereignty. It wants to make an exception of the exception. The decision implies extra-constitutional breach of presidential immunity.
If he keeps being pulled in different directions, the Prime Minister is likely to decide in favor of disobeying the law. By virtue of such an exception, he shall be deciding to be the sovereign of his own self
Mushtaq Gaadi teaches at Quaid-i-Azam University.