Succumbing to a war of nerves

There has been a natural atrophy of the trend of “judicial activism” that began in India and was followed by Pakistan.

Another bout of “political instability” was unleashed on October 15 when a full bench of the Supreme Court asked the government to certify that it did not intend to topple it by withdrawing the executive order that had restored the judiciary in 2009. It ignored a statement by Prime Minister Yousaf Raza Gilani that he had no such intention. Chief Justice Iftikhar Muhammad Chaudhry, while ordering the attorney general to give in writing what Mr Gilani had said, remarked that he knew that the TV “ticker” breaking the news was authentic and that a conspiracy was being hatched within the ruling party. The incident was politicised that same day. Well-known partisans for and against the judiciary squared off. The “news” reported an internal PPP plan to withdraw the executive order. The current president of the Supreme Court Bar Association (SCBA), Qazi Muhammad Anwar, known to be intensely anti-government, issued dire warnings about the action the lawyers would take: “The lawyers want permission to stage a march on the Constitution Avenue”.

On the other hand, a former president of the SCBA, Mr Ali Ahmad Kurd, thought that the Court had needlessly succumbed to a war of nerves against the executive and should have taken note of the “news item” on Friday morning instead of late Thursday night. A candidate in the coming SCBA elections, Ms Asma Jahangir stated that there was a consensus among the lawyers that the said executive order was legally a dead letter. She added that there was no need to “politicise” the incident. The TV channel which had run the ticker was brought under pressure and leaned on the anchor of another more overtly anti-government channel to “authenticate” the information.

What the guest anchor – known for his contacts within state agencies – revealed was even more intriguing. He said he could corroborate that the PPP agents had succeeded in “penetrating” the judges of the Supreme Court and were claiming that at least seven or eight judges had split from the 17-member full bench. Clearly, the hint was that the chief justice had good reason to call a nocturnal session of the judges to see if there were any cleavages. TV discussions on October 15 generally agreed that the Court had acted with haste, that the prime minister’s disavowal was credible and that there was no expectation that withdrawal of the executive order would have led to a second removal of the judges by rescinding the Court’s own earlier judgement that the order itself was redundant in the first place.

The government is clearly on the defensive. The media, alert to corruption, seems to be on the side of the judiciary in this war. Why should the judiciary feel threatened, unless the split in the ranks of those who had marched in the streets for its restoration in 2009 has made it weak-kneed? It has even less reason to feel alarm from the military whose relations with the government are often reported as stormy. An aggressive PML-N is gearing up to man the barricades once again and would not mind mid-term elections if they are triggered by its next long march. But careful attention must be paid to what the allies of the PPP are saying. The MQM’s Altaf Hussain says the judiciary and the PPP “should stop conspiring against each other”, meaning that the judges too are conspiring. And the ANP hints that getting rid of a Sindhi president would be a bad augury for a Punjab-dominated country.

What has exacerbated the judges-versus-PPP debate is its politicisation. Having the upper hand by reason of being the “interpreter of last resort”, the Supreme Court needed to moderate some of its “activism” and move towards the “minimalism” that keeps judiciaries all over the world from trespassing the domain of the executive. A government threatened with yet another incomplete tenure has entered its “desperate” phase and will try to show the Court’s verdicts as “political victimisation”. In this it will succeed if it is toppled, causing the judiciary to lose prestige. The jitters being felt within the PPP have found intense expression in the media. But what the Court may feel is not supposed to be expressed openly. Since the judiciary got restored, the Court has negotiated a terrain of mixed experiences. It began with a consensual approbation of a chief justice who got himself into trouble with the Musharraf government with his 6,000 suo motu cases described often as “judicial activism”. As the career of this “activism” unfolded, the public view of where the judiciary was going began to change and fragment. Since the PPP government was targeted, it squealed a lot. There were also the “middle-grounders” who still preferred the judiciary but thought it was becoming “excessive” and increasingly oblivious of the higher tenet of allowing elected governments to complete their tenures.

The lawyers misbehaved – which the judiciary tended to ignore – thrashing the police and media men before splitting among themselves. The PPP jumped in with handouts to the various bars, but when the Lahore Bar Association assaulted a sessions judge and wanted him removed, only to find Chief Justice Khwaja Muhammad Sharif opposed to it, they attacked his court. If anyone thought that the Lahore lawyers were only pro-PPP he was mistaken: the lawyers were now split across the political divide and the Supreme Court could no longer count on a monolithic support from the legal profession in its war with – let’s put it bluntly – President Zardari. Hence the jitters on the other side.

The observation made often from the Supreme Court bench that the honourable judges are being treated to rough language on the media is apt. The frankness of the discourse of the media was bound to match the bluntness with which the honourable judges have been wont to criticise the backslidings of a typical third world executive, corrupt and incompetent. Public opinion is now more inclined to see the judiciary and the executive equally culpable in the lowering of the level of communication between them. The media has been given the latitude to be frank about the judiciary by the carelessness of the out-of-court remarks of the chief justice of the Lahore High Court. And there has been a natural atrophy of the trend of “judicial activism” that began in India and was followed as a precedent by the judiciary in Pakistan. Realism has dawned in the shape of self-correcting strictures in India; it must follow in Pakistan too.

Published in The Express Tribune, October 17^th, 2010.