There are clear signs that the political order of Pakistan is facing familiar problems of institutional imbalance and power politics. Ambiguity, ambitions and protection of gains have forced institutions to question the jurisdiction and legal authority of one another. This has produced the gridlock politics that we face today. We have been in similar situations many times with disastrous consequences for democracy.
This time around the row is between the judiciary – supported by the lawyer’s community, media and civil society – and the federal executive. The question is, knowing well what the consequences might be, why the powerful judicial and political actors show no restraint. Maybe it is suicidal instinct, and maybe it is weak nationalism and a sense of political responsibility. It is also an issue of boundaries of institutional authority and jurisdiction either being blurred or individuals heading institutions interpret their constitutional roles and powers given under the law very differently to advance their political and institutional interests. Or, as in the case of military takeovers, there was no respect or regard for any of the democratic institutions — constitution, judiciary or elections.
Once again we are in dangerous downward spiral. The question is not who may get smashed harder — the fall may be such that neither of the two organs may manage to survive the impact. We shouldn’t be kidding ourselves, as party spokespersons often do that there is no confrontation between the executive and the judiciary. The bitter fact is that they are on a collision course. There is only a thin political veneer over the looming political crisis and when we swipe it off, we see a troubling scene of the two institutions fast heading towards a showdown.
Why? First we have a simple answer. The superior judiciary wants to dedicate itself to the rule of law and supremacy of the constitution by asserting its power of having the final say on what the law is and what the constitution says. It is a normal institutional practices in settled democracies. On the face of it nobody should have any problem with this assertion.
But why does this normal role of the superior judiciary invoke conflicting interpretations in Pakistan? There is yet another simple and popular answer to this complex question. President Asif Ali Zardari, his business partners and close political allies want to prevent independent accountability of their past and present acts. And they are using executive power and power of the political constituency to resist and intimidate the judiciary. Thus goes the argument.
Maybe, maybe not. I am inclined to answer the question this way because of the larger issues of political truth. The argument alone does not settle what is politically right and wrong. The interests of the parties in the open and social and institutional forces in the rear, and polarised character of the polity, the three trends that we are witnessing, make it difficult to determine who started and why. The real reason for the confrontation is collapse of the institutional and power arrangements that the National Reconciliation Ordinance had conceived. All three pillars, on which it was to rest on, survive and deliver domestic and international political goods have collapsed one after another — the Dogar Court, Pervez Musharraf as president and a perverted constitution.
With legal flanks open and seemingly indefensible, the executive being a child of politics may tend to use politics as a primary tool of survival, as it appears to be doing, be it hell or high waters. The judiciary may be careless, let the havens fall. Sure, they and we all may lose, and they may come back again with familiar politics of victimisation.
Published in the Express Tribune, May 24th, 2010.