view: Historic judgement? —Fahd Ali

It will neither help the government (in the short run) or the democratic process in the long run if the judiciary also wants to ‘run the show’. That bit — running the show — has always been and will always be the prerogative of the government under the Constitution

History has just been made again, or
at least that is what is being purported all over. The Supreme Court of Pakistan struck down the infamous NRO and now it is only a matter of time before corruption and lawlessness disappear from our society. Do not get me wrong, history has certainly been made but perhaps in a subtly different way than how it is being projected in the media. It is a telling sign that the ‘celebrations’ on the street seem to be restricted only to certain parts of the country. Karachi came out with a unanimous resolution, Quetta did not think much of it, Peshawar only prayed that it is not paid another visit by one of Hakeemullah’s men and Lahore ‘celebrated’ mutedly at best. I do not desire to sound cynical but if that is how it comes out then please blame it on a general lack of sagacity in our country. No sane person would want to condone corruption and I, in my moment of frenzy, have accepted as much at least in principle.

That the corrupt must be caught and punished (after due process) is also a foregone conclusion. None of those conclusions are up for debate, discussion or criticism over here. There are, however, matters that the recent short order on the NRO has brought to the fore that need some deliberation. I think everybody (and their uncles) knew that the NRO would be struck down by the full court. The surprise, however, was the way court chose to do it. The historic aspect lies not in the final judgement itself but in the reasons given in the short judgement and what it essentially represents.

The controversial legal aspects of the judgement have already been highlighted in the media. It is surprising that all 17 judges arrived at exactly the same conclusion in their judgement. Even the July 20, 2007 verdict had a 10-3 split. It certainly beats one’s mind (if not senses) that an issue as controversial as the NRO would result in such a show of ‘solidarity’ amongst the brother judges of the full bench. Again, the judges invoked a clause, among others, to nullify the NRO, which was essentially introduced by a military dictator to control the political system in the country. If parliament over the years has been unable to remove it from the Constitution, the least the Supreme Court could do was abstain from invoking the said clause and thus providing it any ‘legitimacy’. Similarly, some experts have also argued that invoking Article 227 of the Constitution to declare the NRO null and void basically encroaches upon the jurisdiction/powers of the Council of Islamic Ideology (CII). The biggest surprise, I think, was following up the judgement with the formation of monitoring cells at the level of the Supreme Court and the High Courts. To say one controversy has given way to another would be a more apt description of the judgement rather than terming it historic.

Yet the historic part of the judgement lies in the fact that this forms another high point in a longstanding power struggle between the judiciary and the executive that primarily started with Justice Sajjad Ali Shah’s judges’ case in the mid-90s. What I want to point out here is that the institutional tussle between the judiciary and the executive is not recent. Like all fights, this one is also about sharing power. The judiciary has been everybody’s favourite whipping boy for the best part of this country’s history and rightly so in most cases. It, therefore, comes as no surprise that this institution wants to build a more independent institutional character of its own. One cannot argue against the righteousness of this cause. If the institution wants to resurrect its image it should be allowed to do that — after all we let the army do it after every military rule. The judiciary, however, must take care of two things while it rebuilds itself and its image.

First, it will neither help the government (in the short run) or the democratic process in the long run if the judiciary also wants to ‘run the show’. That bit — running the show — has always been and will always be the prerogative of the government under the Constitution. One cannot use the argument of other institutions moving in due to the vacuum created by ‘bad’ governance. Military rule has been justified precisely because of that reason and history has shown that the democratic process in Pakistan has only been weakened with successive military takeovers. It is hard to imagine why a judicial overreach will not cause that process to weaken again. Monitoring cells, therefore, are a bad idea. On that count, however, if ensuring justice is the supreme cause, then why have not there been monitoring cells to see if Hudood Laws are misused or the Blasphemy Law is not yet another instrument of oppressing minorities in Pakistan? Is corruption the only ailment afflicting the otherwise law abiding citizenry of this state?

Second, the power of the judiciary lies not in its ability to ‘run the show’ just as well or better than the government. Its power lies in its independence from not just the political and other institutional influences but also to a large extent from popular opinion. It, therefore, has a much bigger responsibility on its shoulders than any other institution of the state. Whereas the government can face the opposition inside and outside parliament on issues pertaining to bad governance, the judiciary cannot act ‘independently’ to fill the so called vacuum existing because of it. If and when it exists, this vacuum sadly can and must only be filled by political forces. Yet, by fixing commodity prices in the recent past and now by setting up monitoring cells, the Supreme Court is attempting to do exactly that — fill up a supposed vacuum which, sooner or later, will inevitably result in a clash between the executive and the judiciary. That certainly does not bode well for either the government or the democratic process in Pakistan. We have enough history to show us that replacing a weak democratic government with another institution has left us with bigger problems to contend with. Let us not shove ourselves in that direction again.

Fahd Ali is studying Economics at the New School for Social Research in New York City. He can be reached at fahdali@gmail.com