Our sad history

Gilani's conviction should be regarded among those decisions in history, which generated great political consequences.

The decision of the apex court of Pakistan to convict an incumbent prime minister on charges of contempt of court and sentencing him ‘till the rising of the court’ is more than symbolic. It should be regarded among those decisions in our history, which generated great political consequences rather than resolve them. The modern court system is based on the philosophy of resolving social conflicts, maintaining order and disciplining society by interpreting established laws. The role of the Supreme Court, however, is much larger on two counts. It is the Court of final resort, as well as the final interpreter of what established law entails.

In any democratic system, the courts must have the highest regard, respect, and support of the government and that of society at large. What earns them societal respect is their degree of fairness, independence, courage and the ability to stay above social and political divides. Courts and societies give energy to each other, progress together and complement each other — one provides support and the other justice.

Sadly, this is not how things have worked in our history. The courts and the society in Pakistan’s crisis-ridden political history have not worked out that relationship. They found each other on opposite sides when the Supreme Court threw its weighty justice on the side of political adventurers, usurpers and violators of the Constitution. The law of necessity and the law of popular sovereignty, which assigns power to the people, have been in natural conflict. In the past, courts have sanctified the law of necessity, giving legitimacy to usurpers and on the opposite side, the people of Pakistan have put faith in their representatives and parliament.

Being on opposite sides, the courts and society could not build a congenial relationship that could benefit both, and ultimately could have provided better safeguards for democracy, fundamental rights and civil liberties. The courts would have then equipped themselves, not only with raw legal power, but also with social power and political respect.

This did not happen until Chief Justice Iftikhar Muhammad Chaudhry stood up to General (retd) Pervez Musharraf. His conversion, from conferring legitimacy upon Musharraf by taking oath under the Provisional Constitutional Order more than six years earlier, to an independent chief justice, surprised and shocked the military ruler. Musharraf humiliated him, locked him and his family up and went on to recreate a pliant Supreme Court to support him. Look at the magical and dramatic effect of saying no to a military ruler on the public — the chief justice became a national hero, all political parties, except those sharing power with Musharraf, launched a national movement and never rested until the old judiciary was restored.

That is the only time when we saw the judiciary and the society in Pakistan united, and that raised hopes for democracy and constitutionalism. I do not wish to comment on the merit of the contempt of court case. That is the job of legal experts. The point I am trying to make is that when a court makes an unprecedented decision of convicting a prime minister for not implementing one of its orders — writing a letter to Swiss courts to open cases against President Asif Ali Zardari — which the prime minister thought was not politically possible for him to implement, it will produce political consequences for the Court and the political order.

Had we not had the history of the Court and the people having conflicting positions, perhaps the effects of the judgment against Prime Minister Yousaf Raza Gilani would not have gone beyond inflicting personal pain and a political setback for him. Now, however, we may see the political community divided along partisan lines, and the PPP mobilising its constituency on the victimhood card. This may not augur well for the Court-society relationship.

Published in The Express Tribune, May 3^rd, 2012.