Returned to sender

The Supreme Court has predictably found Article 175-A violative of the constitutional concept of independence of the judiciary and sent the 18th Amendment back to the parliament for a revamp. Given its ‘activist’ mode, it could have struck it down, thus bucking the legislature that had passed it unanimously. But it hasn’t done that. And some may not put it down to judicial restraint. The unanimity that backed Article 175-A has since evaporated.

Precedents in other parts of the world are mixed. In the US, the president nominates and the Senate approves; and nominations tend to be political. In India, the Supreme Court has broken free of this constraint, reinterpreting ‘advice’ as ‘consent’ and handing inductions over to a ‘collegium’ of judges. Our Supreme Court has been quietly following its Indian counterpart since 1996. The political signalling was just right. Some jurists thought the ‘unanimous’ amendment was too strong for the Court to overturn. But if you look carefully, the majority that stood behind it has proved chameleon; and the politicians in parliament no longer feel inclined to stand by their oaths against toppling governments in midstream. The parliament therefore will not pass it yet again to tell the judiciary to stop trespassing on its turf. The Court has been sensitive to this development: it hasn’t touched the provision that frees political parties of the ‘democratic’ obligation to hold elections.

The PPP will gorge on the humble pie, hoping that doing so will soften the Court into letting President Asif Ali Zardari off the hook. That would be a wrong presumption. The ‘executive order’ episode did not cover the Court with glory and may still be hurting. And the PPP has not been able to shore up its rapidly declining equation with the PML-N against the backdrop of a dissatisfied establishment. The judiciary requires to be ‘independent’; but many among those who champion its cause want it to be ‘powerful’. Instead of mutual ‘balance’, the judiciary is strong because the PPP is weak. Perhaps on some future date, the mandated ‘equipoise’ will prevail.

Published in The Express Tribune, October 22^nd, 2010.