Men in Black: Four Years of Vanity
By Dr Mohammad Taqi
Florida
The democratic dispensation in Pakistan has completed its constitutional term for the first time in history. A lot has been written about the constitutional achievements and governance including handling of the terrorist menace by the political governments at the federal and provincial levels. Balance sheets for leaders and parties are being rolled out in the media as the country gears up for what would be hotly contested general elections in equally hot weather. But despite the national assembly completing its term, the leader of the house it originally elected could not achieve that same milestone. And not just that but the former prime minister Yousuf Raza Gilani stands disqualified from even running in the elections through a verdict delivered by a superior judiciary that he restored through an executive order. This month marks the fourth anniversary of that fateful restoration.
The restored judiciary with the Honorable Chief Justice of Pakistan (CJP) Iftikhar Muhammad Chaudhry thus had a four-year overlap with a democratic government. It perhaps is also a first in the country’s history where an independent judiciary coexisted with an elected government. The CJP’s prior experience had been working under a provisional constitutional order of a military dictator that he later bucked and earned laurels in the country and around the world for doing so. The popular movement to have the CJP along with scores of other judges deposed by General Pervez Musharraf reinstated culminated in the judges’ restoration. Many of us who participated in the movement from the outset started getting a sense along the way that instead of broadening the base and the objectives of the movement the four principal lawyer leaders wanted to keep it limited to restoration of the judges. As the movement morphed further, the activists and even tens of deposed judges felt that the campaign had become person-specific with the sole objective of restoring the CJP. Many of the deposed judges thus started returning to the bench via different arrangements including some taking a repeat oath. But the CJP carried on resolutely as if he had some kind of a premonition.
The restoration ultimately of the CJP, along with a handful of other judges who were left by his side by then, through a mass movement seems to have been construed by him apparently as a form of supra-constitutional mandate to fix whatever he perceived to be wrong. This sense of purpose seems to have entailed a lofty vanity as well. The post-restoration four years of the superior judiciary have become synonymous with its use of suo motu powers, yet there seems to be no judicial doctrine that could truly be called the legacy of the present Supreme Court (SC).
From petrol prices to prime ministers, all were dealt with by the SC but even this proactive role cannot be called judicial activism in the commonly understood sense of the term but a chaotic hyperactivity in reaction to media headlines, reducing the laying down of judicial verdicts to generating more headlines and sound bites. Populism, bordering on demagogy, flowing from the success of the restoration movement, seems have been the Grundnorm of the SC since restoration. The CJP and a couple of other judges have clearly claimed that they represent the people. Interestingly, there has been little or negligible dissent among the judges in almost all cases, especially those of political importance. The august SC has effectively acted as a monolith, with the Honorable CJP Chaudhry coming across more as a chief executive rather than the CJP. Very surprisingly, other judges kept endorsing the CJP as he defined the scope of his court and its relationship with other institutions of the state. Is it a mere coincidence that all judges of the SC felt the same way about what the US SC Justice Antonin Scalia had called forsaking text and tradition in favor of “philosophical predilection and moral intuition”?
In the case of the SC of Pakistan, the moral intuition turned into a moral certitude that resulted in the judges, en masse, sending a prime minister packing, impugning the loyalty and patriotism of overseas Pakistanis and dabbling into matters of ‘national interest’ in the name of public interest to force a Pakistani ambassador to resign. The SC bench marching as a military regiment in unison may have also resulted in the august court finding it difficult to see where it might have erred and to subsequently review and rectify it. The SC remained at loggerheads with the ruling Pakistan People’s Party over the 2007 National Reconciliation Ordinance (NRO), which ultimately turned out to be nothing but a massive distraction for the public, the government and the court itself.
The response of the Swiss authorities virtually vindicated Yousuf Raza Gilani’s stance in the NRO case and showed the futility of the whole exercise. Now contrast the rather harsh obstinacy in the NRO case with the Air Marshal Asghar Khan case where the mighty military establishment was let off the hook with not even a slap on the wrist. Similarly, in the SC-appointed commission in the so-called Memogate matter, the court denied the former Ambassador Husain Haqqani an opportunity to record his statement via video link but in the Lal Masjid case the SC afforded the same facility to the former prime minister Shaukat Aziz without any ado. Ironically, the honorable SC has threatened to suspend Mr Haqqani’s passport in a matter in which he has not even been formally charged. It was such arbitrariness and judicial overreach that came under close scrutiny by the International Commission of Jurists last year.
Professor Kermit Roosevelt III writes in his book The Myth of Judicial Activism:
“The constitution does not belong to judges, as a mystery intelligible only to a priestly caste, and it does not belong to political activists, as a set of incendiary talking points. It belongs to the people. It is our responsibility to judge the Court, and it is our judgment that must be decisive in the end.”
Claiming to represent the people is not a one-way street; it entails accountability too. How justice is done is very much the business of the people for it affects them directly. While it is not going to be a major election issue, the people of Pakistan need to watch out that vanity and capriciousness is not the only legacy of the men in black who were restored through the toil and blood of the common man.
(The writer can be reached at mazdaki@me.com and he tweets @mazdaki)
