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 21st, 2012.
COMMENTS (17)
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//trivial matters like the constitution or chipping away at the military’s power//
Says a lot about the writer!
Completely ONE SIDED PICTURE
Good and logically build arguments. Earlier, the political vacuum used to be filled by the khakis, but now the SC is proactive in highlighting the incompetence of the Government. The SC would not have been this much active had the Government been doing its job properly. It is painful to see the supporters of the present Government still defending them. This is retrogressive thinking. we need to move forward.
The author has ignored two aspects 1) court's actions smell of bias and victimization because the PPP government did not reinstall the judiciary when it came into power till such time the COAS intervened. 2) the court has on numerous occasions reminded the politicians that it reserves the right to strike down any amendment in the constitution. It’s a very one sided affair.
@Author
Nobody is saying we should show the PPP or PM's office greater deference. We are simply saying the COAS and DG ISI be subjected to the same force of the law for their multiple (alleged) constitutional violations. Albert Ven Dicey's Rule of Law, a fundamental pillar of which is that the law is applied equally and transparently and that nobody is above it.
Until that happens I refuse to recognise this judiciary as an indepedependent or legitimate arbiter of this nation's affairs.
If the Chaudhry Supreme Court consider the supremacy of the Constitution paramount, why has it shied away from ruling on the legality of immunity for President Zardari. Certainly, if Gilani is wrong in not following the court's directive, by refusing to write the letter to Swiss authorities, it is because Zardari's immunity doesn't hold up constitutionally. If the court believes that, it is but a simple matter for the judges to make that ruling. But the Chaudhry court has assiduously avoided addressing that question. The fact is that the SC knows that constitutionally, Zardari's immunity is water-tight. Its a lot easier to attack Gilani for contempt of court. So let's hold off on the marching bands for Iftikhar Chaudhry and the victory parades for democracy until the court can show stomach for taking on its real target.
It is one thing to ask for the Adiala 11 to appear in court. Quite another to punish the murderers of 4 of them. Until the court has done that, this hail-to-the-chief is premature and merely a celebration of appearances/illusions.
The real rulers of the country are the military and I don’t see them in court despite several accusations of murders and abductions, among other accusation. So I don’t get your point except that perhaps you have an agenda to defend the indefensible.
Interestingly, both the PPP and the judiciary do not appear to have lost grounds to each other during their confrontation of the past few years; they in fact have got strengthened in their respective constituencies. Judiciary’s constituency is the urban middle class, the one which is more concerned with the corruption and nepotism of a few selected ones. The right wing media and political forces are also supporting it. PPP’s constituency on the other hand consists of the rural population, poor masses, and less privileged nationalities. They are those people whose welfare depend upon the public morality- strong democracy, sovereign parliament and a just court system. Intelligentsia that considers itself progressive, anti-establishment, pro democracy and secular is also critical of judiciary’s targeted assault on the PPP and its right-wing tendencies hence is sympathetic to the PPP. Concerted efforts on part of the judiciary to discredit and humiliate PPP and its leadership and that alone if have yielded results among the traditional anti-political classes and anti-PPP forces then they have been counter-productive among the rest. The purpose here is not to condemn the urban middle classes who are motivated by the considerations of private morality-corruption and nepotism- that make them admire the higher judiciary. The problem is with the narrow understanding of the corruption and its selective application to a few. Moreover, it can't be a metaphor for all the problems we are facing. There are issues related to the continuity of the civilian rule and strengthening of the democratic institutions. They in turn have bearing on the production and distribution of resources and wealth, and on their exchange and consumption. The elite can live with the private morality alone, but masses can't. We need both the private morality, not confined to a few but across the board, and the public morality. One may hope that judiciary will overcome its subjectivity and selectivity with time and start playing a positive role, as a lot of us expected of it, once they are over with their formative phase.
For all one knows Iftikhar Chaudhary may be given a three or five year extension. After all a precedent has been set by giving a three year extension to Kayani.
What do you mean, SC doesn't know the president has immunity under the very constitution they are supposed to enforce? They could summon the PM for the case of self immolation on Jinnah Avenue last year. Why make a scene out of a case that is no case?
This hyper active suo motu SC is fine and dandy. However, who is going to take care of the thousands of cases rotting in the high judiciary for decades? As if the only job of SC is to act on the new political cases or suo motu that it chosses! No matter how good a job they are doing but the SC of any country does not run on the personal wishes of its judges. If there were no manufactured and new cases, would the SC go out of business? No paid govt servant ignored its primary job and chooses whatever he likes, but it is Pakistan and its PCO SC which is chasing a foreign double agent and put its three sitting chief justices of HC on the wild goose chase as well.
Last para------I doubt,such gems come one in centuries
Prepare the PPP trolls, I would be pleasantly surprised if they do come and comment. There are hundreds of those guys whenever there is a PTI article. Come on PPP defend your martyr.
Progress for one individual, yes, but not the whole system. Those illegally abducted may occasionally surface but The "agencies" themselves are still dark holes where no light penetrates. To change that their personnel must be called to account: their activities subject to oversight by elected officials and criminal acts traced back to individuals subject to judicial prosecution, conviction, and punishment.
Nicely argued. In today's context when none of the organs of the State seem to be functioning the efforts of the Supreme Court to try and instill some sanity into this deliberately created mess, has to be appreciated.