Well done, SC!

For the Iftikhar Chaudhry-led Supreme Court, taking on de-facto & de-jure rulers of country is simply called Monday.

Here’s a metric for judging the effectiveness of the Supreme Court: count how many enclaves it has breached. The more areas it uses its suo motu jurisdiction, the better a job it’s doing. In just one day last week week, the Supreme Court managed to enrage the perpetual martyrs of the PPP by the creation of a possibility whereby Prime Minister Yousuf Raza Gilani could be convicted on contempt charges and hence lose his office. It then followed that up by forcing the intelligence agencies to produce prisoners, already found not guilty in a court of law, that were under illegal detention. Previous incarnations of the Supreme Court either knew they had to provide back-up to those in power, whether civilian or military, or learned to do so soon enough. For the Iftikhar Chaudhry-led Supreme Court, taking on the de-facto and de-jure rulers of the country is simply called Monday.

Those who have a vested interest in a less active Supreme Court need to continually reboot their arguments to explain why the judiciary needs to be checked. Argument 1.0: the Court is simply doing the military’s dirty work for it and hounding the PPP government. Now that the Court is going after the intelligence agencies with a considerable amount of zeal and has even dusted the mothballs of Asghar Khan’s petition from the 1990s accusing the ISI of funding political parties, that particular line of criticism lacks the vital quality of having any truth to it.

So it’s time to trot out Argument 2.0, where enough nit-picking can hopefully obscure how the anti-Supreme Court/pro-PPP forces are essentially picking at straws. This mode of attack, still in the beta mode, holds that the Supreme Court humiliated a duly-elected prime minister by hauling him up before the court but would never do the same to the chief of army staff or the director-general of the ISI. First, instead of celebrating the fact that we finally have a court that can force a sitting prime minister to obey its judgments, we are instead told that it must show greater deference to the prime minister’s office. This also ignores the fact that Gilani has been ignoring the Supreme Court for many months and only now has he been forced to explain himself.

What the PPP has to decide is what’s more important: continuing to enjoy the trappings of power unencumbered by trivial matters like the constitution or chipping away at the military’s power. The party has abdicated huge swathes of governance to the military as the price of continuing to keep its government intact. The Supreme Court, meanwhile, is doing the dangerous work of trying to actually make the military accountable to the law too.

Only a willful or ignorant misunderstanding of what democracy means could lead one to conclude that the Supreme Court has overstepped its bounds by taking on the prime minister. The Supreme Court is meant to be the final arbiter of interpreting the Constitution. If parliament doesn’t like a Supreme Court interpretation of the constitution, it doesn’t have the power to ignore it. But it can, as it did by passing the 20th Amendment, follow the process of changing the Constitution.

As welcome as this course correction in the balance of power between competing forces has been, we still have to wait and see if it will survive. Much of the court’s power is derived from the moral authority Iftikhar Chaudhry gained from taking on Musharraf. It is only after he retires in 2013 that we will found out if this shift is permanent.

Published in The Express Tribune, February 21^st, 2012.