The Supreme Court judgement of December 16th 2009 has injected yet another dimension in the national discourse, the consequences of which have the potential to move towards confrontation with the highest judiciary. Alignments and realignments are being witnessed that will shape the configuration of forces.
Ironically, the apex court is increasingly portrayed as a villain, which till now was applauded and hailed as vanguard of constitutionalism, having played the role of a catalyst in the restoration of the democratic order. What is it that has brought this change and who are these 'supporters turned critics'?
Striking down the NRO as ultra vires to the constitution, the Supreme Court's unanimous decision had theoretically been accepted by all, as no one could lend support to such a 'black law'. The government could not table the NRO in the assembly and the Federal and provincial governments also did not defend it before the court, though fears were expressed about the threats from the GHQ and CIA, but the same were retracted.
This, however, revealed the lurking fears in the government's mind and explains the source of conspiracy theories that float around to create more confusion, a luxury that we can ill-afford at this critical juncture. It was a big 'NO' to a military dictator that turned the political tide against the regime. Until then, the political parties, NGOs, and others had failed to pose a credible threat to Musharraf's set-up.
The lawyers' movement in favour of the Chief Justice was the beginning of the end of the regime paving the way for making a transition to democracy. Of course, the movement attracted the support of political parties, NGOs, civil society and others, and together this task of overthrowing an entrenched ruler was accomplished. Everyone was supportive of the independence of the judiciary and even the rhetoric of political leadership supported the same vigorously.
However, the post 18 February elections saw a different face of the elected government. The newly democratically elected government decided to pursue the governance paradigm of Musharraf's years in power and even appointed his ministers in the present set-up.
The 17th Amendment and Article 58 (2)(b) are still hanging out as contentious issues between the political players and the powerful media is mobilising support for its evolution. The government is reluctant to resolve this issue, thereby feeling the heat of this pressure and crying out about a conspiracy to de-stabilise the present set-up. Interestingly enough, this conspiracy is debunked generally by the political forces, who refuse to be a party to any unconstitutional move to unseat the present government.
Friendly opposition posturing is visible evidence of their intentions not to destabilise the present regime. Indeed, it is not in the interest of the political forces to initiate or be a party to an unconstitutional act that may change the political landscape against the democratic interest. Who then is playing foul?
The liberals of the enlightened moderation days supported by human rights activists have taken the lead in disputing the role of the Chief adjudicator. In fact, the Supreme Court is portrayed as partisan and politicised. The judgement of 16th December is interpreted in a manner suggesting that the apex court is overstepping its jurisdiction.
Whereas, arguments can be advanced for and against, it is tragic to challenge the institutional role of the superior judiciary and start building controversies around its functioning. The Supreme Court made a break from the past when it issued a 'pre-emptive judgement' on 2nd November 2007, attempting to obstruct the imposition of another martial law without success.
What followed the 3rd November action of Musharraf, was a struggle by lawyers, political parties selectively, and civil society groups for the restoration of an independent judiciary and a democratic set-up in the country. Hence, the make-up of the restored judiciary and its orientation are towards supporting the democratic forces. Installed in office through the mobilisation of pro-democracy forces, inevitably makes judiciary their ally. The emerging culture and direction of the Supreme Court, therefore, are towards rule of law and constitutional rule.
Much, however, is made of what goes on in the name of judicial activism and public interest litigation. This phenomenon is visiting mostly the developing countries, where governments are failing due to their bad performance and incompetence.
Even in the developed countries, the higher judiciary has grappled with social issues like abortion, death sentence and integration through busing (USA). In a country like Pakistan where rule of law and constitutional rule has been a recurring casualty, judicial activism seems like a remedial and corrective action when it also enjoys the support and goodwill of the public.
Where were the human rights activists when human organs were traded in the city of Lahore? This illegal business thrived to the extent that foreigners started coming in to benefit from this grotesque trade. Around 160 plazas have been built illegally through corruption. These illustrations represent the dominant trend towards violation of laws. Indeed, this is a manifest evidence of the rampant corruption that permeates across different levels of the society.
The big scams like steel mill case and the names of loan defaulters etc reveal the corrupt elite nexus who are disputing the role of the judiciary together with their allies. The monumental corruption is a by-product of a culture that facilitates violation of rules and laws.
The absence of legal regime has eaten up the healthy fabric of society, leading to a breakdown of law and order. This is even referred to as symptoms of a civil war situation and if not arrested urgently the inevitable will follow. The situation warrants a cleansing process and the constitutional rule is the best mechanism of doing it.
All previous interventions in Pakistan have been away from the constitution, leading to its disfiguring. The newly installed independent judiciary is moving towards a constitutional rule to address the peculiar Pakistani situation. The democratic forces need to lend support to the processes which bring Pakistan in the direction of constitutional functioning by puncturing the mafia constellations.
(The writer is a Senior Fellow and Professor of Political Science at the Lahore School of Economics. He can be reached at [email protected].)
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