Opinion By Sultan B Mirza The Fridaytimes

The Supreme Court under Chief Justice Iftikhar Chaudhry is no sidekick to other constitutional players.

An outline of Pakistan's political history makes it look like the civilians and the military have been playing ping pong. Politicians ruled the country during the 1950s, 1970s and 1990s, and military generals ruled during the 1960s, 1980s and 2000s. And although Asif Zardari has become the first president to have addressed the parliament five times, many believe it is a matter of time before the military is back for a fourth term.
The first thing the chief justice did after being restored was to amend the judges' code of conduct was to prohibit taking oath under a PCO


But during the last six years, the game of ping pong has on occasions been uncharacteristically interrupted and reshaped by a third force - Chief Justice Iftikhar Chaudhry. His tenure as pater familias of the government's judicial branch has transformed the Supreme Court from a bunch of rubber-stamping bureaucrats to a pack of paternalistic watchdogs.

But despite making headlines almost every day of the week, sometimes even on Sundays, as they stop mid-morning cooking shows for breaking news, our courts have not received the kind of scholarly spotlight that the scope of their efforts deserves.

The remarks, orders and judgments of the courts have all been observed with extremely narrow and often partisan perspectives: the CJ and other judges are either viewed as tools of the establishment, or a group of messiahs for the miserable. The opinions about the Supreme Court overstepping its constitutional and democratic mandate, condoning the wickedness of Nawaz Sharif and the khakis while hunting Zardari, ignoring the corruption in the district and tehsil courts, or hearing certain political cases while the poor and the hopeless waited for justice in long queues, all analyse the Court's endeavours within the traditional political framework in Pakistan.
There aren't many who can honestly criticise what the Chaudhry court has actually done, as opposed to what it has chosen not to do


This framework considers the military-controlled establishment and the political elite to be the only major players in Pakistan's constitutional dynamics, that is, the dynamic of controlling or being controlled by Islamabad.

However, ever since the Chaudhry court struck down the privatisation of Pakistan Steel Mills in June 2006, it has been simply impossible to contend that the Supreme Court plays no independent role in the constitutional evolution of this country. There is little doubt that Chief Justice Chaudhry was the prime symbol of the political struggle against Musharraf, and then of that between PPP and N-League after the 2008 elections.

And ever since its restoration in March 2009, the Chaudhry court has asserted itself in ways unprecedented in the political history of this country. In June 2009, it not only declared Musharraf's emergency unconstitutional (which can be favourably compared with the court's earlier decisions against Yahya's martial law, Zia's dissolution of Junejo's government, and Ishaq Khan's dissolution of the first Nawaz government), but also reversed the effects of the unconstitutional deed. In late 2010, it successfully compelled the parliament to re-amend a technically sound amendment to the Constitution (in the author's view, the Supreme Court had no traditional juristic power to refer the 18th Amendment back to the parliament. This is why the 18th Amendment case, once quite high profile, might never be taken up again). And, more recently, it forced a democratically elected prime minister to appear before it as an accused.
It is no sin to hope the Supreme Court keeps up its interventionism without going so far as to directly or indirectly dismantle a democratically elected government


The only holy cows yet to be chased by the Chaudhry court are the true holy cows in this country - the generals. Judging by the facts that the army and the ISI chiefs submitted statements to the Supreme Court in the 'Memo' case, and that the court has been utterly unsympathetic with the agencies in the sub judice missing persons' cases, the day might not be far away when, perhaps in one of the ongoing cases, an army or ISI chief will be asked to appear before court and justify the frequent and brazen disregard displayed by their subordinates for the due process of law.

The Chaudhry court's courage and confidence is in sharp contrast with the erstwhile meek, almost servile attitude of the country's most honourable judges towards greedy aspirants to democratic or military rule. More interestingly, the bravado of the apex court also seems to be inspiring the regional high courts: the suo motu actions of the Lahore High Court (that is, just the fact of suo motu actions, nothing more) and the activism of Peshawar and Balochistan High Courts in the missing persons' cases, are especially noticeable in this regard. In other words, the Chaudhry court seems to be developing into more than a mere exception to the rule - the Supreme Court under Chief Justice Chaudhry is no sidekick to any other constitutional player; instead, it is actively supervising and partaking in legislative and executive functions that were traditionally reserved for the politicians or the establishment. Moreover, the first thing Chaudhry did after being restored was to amend the judges' code of conduct was to prohibit taking oath under a PCO, and he has never failed to mention this fact at every available opportunity since. The political background to this prohibition and the subsequent developments in the apex court would make any army chief think twice about testing the judges' resolve on this issue.

The precise scope of this sustained judicial aggression is difficult to determine, but it is clear as sunshine that this interventionism is constitutional in nature and may very well play a decisive role in the formation and dissolution, or the sustainability for that matter, of future governments in Pakistan. This is the case because, consciously or otherwise, the Supreme Court seems to be playing four different roles in the ongoing constitutional dynamics.

Firstly, its self-proclaimed role as the unflinching ombudsman over the democratic government takes away from the military the traditional excuse of corruption and poor governance it cites to step into power. Secondly, its oft-repeated institutional resolve against military coups, and recent activism against spy agencies, will further dampen the spirits of an adventurist soldier. Thirdly, the court's rhetoric in judicial review and human rights cases has consistently and emphatically cited the Constitution and "will of the people" as its guiding force and ultimate audience, and indeed, there aren't many who can honestly criticise what the Chaudhry court has actually done, as opposed to what it has chosen not to do. Fourthly, due to this careful and effective positioning with respect to the elected government, military, and the ordinary people, the court can play a meaningful role in mediating between all three of these constituencies, and especially between the military and the civilian government (as is amply demonstrated by the Memo case), and thereby, perhaps in a uniquely Pakistani way, help establish a sustainable constitutional democracy in Pakistan.

If the above analysis is tenable, and if one may take the liberty of naming it the "Chaudhry Doctrine", then it is vital to consider whether or not this doctrine will outlive Chief Justice Chaudhry, who is due to retire next year. The attitude of several judges of the Supreme Court, as observed in the court as well as in their judgments, suggests the Chaudhry Doctrine might very well live on. It is no sin therefore to hope the Supreme Court keeps up its interventionism without going so far as to directly or indirectly dismantle a democratically elected government.

There is a perfectly valid criticism that this sort of judicial activism is liable to undermine formal democracy, but on two key grounds it can be defended. Firstly, considering Pakistan's history with coups and corruption, we have no choice at the moment but to define democracy in negative terms, that is, in terms of continued absence of a military dictator directly running the show. Indeed, it'll be victory for democracy if civilians can retain power for, let's say, 20 years at a stretch. Secondly, both the Supreme Court and the civilian government are responsible for not going too far in testing each other's commitment to democracy defined as civilian rule.

In this context, it is very important to note that the court has indeed looked like going after Zardari and Gilani with a view to remove them from the political scene, but still it has not wielded the sword that it has been waving for more than three years now. Similarly, the civilian government has also been showing due respect to the Court (for example, the arguments about Zardari's constitutional immunity and Gilani's right to form independent views on constitutional interpretation are both valid and well-respected).

As an aside, one can also be hopeful that Pakistan will not get another president or prime minister who is as controversial as Zardari, or another chief justice who has as much political capital (thanks to the Lawyers' Movement of course) as Chaudhry. So if the present constitutional crisis can be endured (and it might already be over now that after Senate elections nothing much is at stake until the next general elections), then one can hope for less dare-devilry in future on the part of both the elected government and the Supreme Court.

The writer is a LUMS law graduate and Fulbright scholar