By Haris Gazdar writing for the DAWN today
THE Supreme Court’s ruling on July 31 striking down some of the actions taken by former President Musharraf as unconstitutional has been hailed as historic.
This is hyperbole. What is more important is how the judges and their supporters plan to use the power they are acquiring with respect to the key challenges facing the state and society.
The constitutional petitions before the Supreme Court related to the legality of judicial appointments during the 16-month period when Mr Iftikhar Chaudhry had been removed from his position as chief justice. The court ruled these judicial appointments to be illegal. The jobs of 110 judges of the higher courts were put on the line. In effect, a few judges of the Supreme Court gave themselves veto power over the composition of the higher judiciary as a whole. Those declared as ‘non-judges’ included not only the so-called PCO judges but also all those judges appointed to the higher courts between Nov 3, 2007 and March 22, 2009.
What escaped the radical judicial gable is instructive. The process of general elections which had started during the emergency with the announcement of the schedule, judicial reviews of the qualifications of candidates and the poll results by ‘non-judges’ was condoned. It appears that popular sovereignty trumps everything except matters about which the court thought otherwise — such as Mr Abdul Hameed Dogar’s retention by a duly elected government. Earlier, the court had deflected the question of Musharraf’s accountability towards parliament. Mr Aitzaz Ahsan, Justice Chaudhry’s former counsel and a leader of the lawyers’ movement, met Gen Kayani just a few days before. The resulting speculation could not be quashed.
The political nature of the ruling could not be concealed behind hair-splitting arguments condoning some actions arising from the emergency and nullifying others. The court seemed interested in expanding its own powers in the name of safeguarding the constitution, while sidestepping accountability for the main culprits responsible for the constitutional mutilation. It also signalled that it was not declaring war on the elected government; it was perhaps only preparing for it.
The common explanation for subjecting Musharraf’s illegitimate regime to judicial review is that future coup-makers will be deterred. This is a flawed reading of history. The main concerns of coup-makers are to carry the army, assuage foreign powers and prevent popular resistance. Judicial legitimisation comes further down the list. Perhaps a future coup-maker will now involve judges and lawyers among conspirators early on. If democracy is to be safeguarded political society will have to work to build its unity, militant Islamic nationalism in ‘core’ regions will have to be de-legitimised, and ‘peripheral’ regions and ethnic groups will need to be incorporated into the mainstream. On these and other substantive questions the lawyers’ movement and the activist judges come up a cropper.
The exclusive focus on Musharraf’s Nov 3 emergency misses the big picture in the backdrop of the slow and still tentative transition to democracy. It is strange to condone the results of the February 2008 elections on post hoc political grounds, while pretending that the process of restoring democracy once it had been derailed could be anything but political. It is widely believed that Musharraf retired from the army only after receiving US-backed assurances that he would be protected. His accomplices proba
bly agreed to the script also on the strength of such assurances.
Democracy was not won back by revolutionary insurrection but though a combination of negotiation and non-violent confrontation. It was never going to be a clean break. Until he was cornered by elected politicians last August, Musharraf retained the de jure power to call the whole thing off. And it is not as though regurgitating the events of November 2007 has produced a clean break either, given the political considerations that appear to have conditioned the present verdict.
The constitutionalist rhetoric of activist judges and their lawyer supporters is belied by their political ambitions. We have witnessed remarkable acrobatics — as in the Supreme Court’s suo motu questioning of the government’s power to alter taxes and subsidies. Judicial activism has not been randomly distributed. There is a pattern: media-fuelled populism, encroachment on the authority of parliament and the executive, and keeping mum where core interests of the military might be involved.
From a broadly supported popular struggle against the Musharraf regime, the lawyers’ movement has morphed into a self-serving power-grab. Sadly, in writing the epitaph of this movement, the 2009 pictures of the black coats thrashing lowly state officials compete with the iconic images of non-violent resistance of 2007 vintage.
There is nothing inherently right or wrong about a group organising collective action for increasing its power. But Pakistani state and society face substantive challenges which require a minimal level of internal coherence and sense of purpose. Successful navigation of the challenges ahead will be a better guarantee of a democratic future than the symbolic humbling of past dictators and supplicant judges who have already been dumped.
The biggest of these challenges is seeing off jihadi militancy — domestically and with respect to India and Afghanistan. The trial and conviction of the Mumbai accused will pose the toughest test yet of the resolve of the political leadership, judicial system and the military. Almost as important are the challenges of managing ethnic and inter-provincial conflicts. Balochistan is the most conspicuous, but not the only one. Necessary economic reforms too will need a deft touch.
Rewards will come slowly, and perhaps never at all for those who pay the political price for persevering with unpopular but desperately needed measures. But there are few alternatives to pushing ahead with reforms in foreign policy, inter-provincial resource distribution and economic management — and doing all this while keeping diverse political constituencies on board. There are strong interest groups which will look for exits from hard decisions — not least many in the military for whom dismantling the infrastructure of jihadi militancy and normalisation of relations with India and Afghanistan would be anathema.
The judiciary’s penchant for populism does not bode well for tackling difficult political questions that require tough decisions and painstaking negotiation. As they attempt to further expand their domain of authority, the judges and their lawyer supporters will also have to take responsibility for their actions, and the alibis they might provide to other forces for stalling crucial reforms.