A judicial agenda for the times

By: Cyril Almeida

QUICK: name the chief justice of India. Can’t? How about Australia then? Brazil maybe? Canada, France or China? Russia, Malaysia or Turkey?

That CJ Iftikhar is a household name isn’t of course his fault. Credit for that goes to Musharraf, who clumsily tried to sack the judge who refused to do his bidding the second time round. However, that CJ Iftikhar and the non-PCO-II judges continue to make almost daily headlines is absolutely their choice. But why? What exactly is the court trying to achieve?

Conventional wisdom has it that you need to look no further than who is getting battered the most — the federal government — and who has the most to lose — Asif Zardari — to figure out the court’s agenda.  That possibility makes the baying-for-blood populists and transformation-seekers very happy and the legal purists concerned about due process, separation of powers, etc very unhappy.  Yet, assume for a minute that CJ Iftikhar’s court has an institutional agenda that goes beyond the fate of Zardari and his cohorts. It really isn’t so far-fetched.

Truth is, piece together the early evidence from the CJ Iftikhar’s orders and comments since his restoration and a picture begins to emerge that is not Zardari-specific.

So what, then, could the court really be after? Why is it opting to so firmly remain at the centre of political discourse and in the nation’s consciousness?

If you believe CJ Iftikhar’s court is trying to wipe out corruption entirely or make each and every holder of elected office accountable for his every action, then you believe in fairytales.

A judge with decades of legal experience in Pakistan knows the vastness of the state machinery and the endless opportunity for those inclined towards mischief. No court, perhaps even no higher power, could fix all that ails Pakistan in the time CJ Iftikhar has: three years until his retirement in December 2013.

Nor — despite attempting to set the price of sugar and petroleum products and pronouncing in March that ‘The people are distressed and the courts are compelled to do the work of the government organisations’ — is CJ Iftikhar probably attempting a takeover of the executive. Even in a Pakistan where the nightmarishly impossible has lately often become a reality, that possibility seems, at present, a bridge too far.

The answer, though, to what CJ Iftikhar’s judiciary is seeking to do may lie in a variant of the ‘encroachment theory’ doing the rounds in some legal circles. Separation of powers is a key element of constitutional democracies and some jurists have fretted that the court of CJ Iftikhar is encroaching on the rightful terrain of other institutions of the state, namely the executive and the legislature.

But while encroachment is probably on the mind of the superior judiciary, few have thought about the possibility that CJ Iftikhar’s judiciary is trying to reverse the historical encroachment on its — the court’s—territory.

Think about it. Everyone knows the damage done by the army to the executive and the legislature. Everyone knows that the politicians have eventually been able to drive the army from direct power. Everyone knows that the army has its guns and that the politicians have the bureaucracy when in power.  But if there is one institution that has consistently been pummelled and trampled underfoot by all sides, it is the judiciary. And alone among the institutional power players, constitutional and unconstitutional, if you count the army (as we must), the judiciary has no means to implement its orders.

Battered into submission and prevented from playing its full and proper role in the constitutional framework because of its dependence on a baulky executive for the implementation of its orders — that in essence is the superior judiciary that CJ Iftikhar inherited.

But Musharraf, and later Zardari, and the lawyers’ movement threw the judiciary a lifeline: unparalleled popular support. Armed with that formidable battering ram, CJ Iftikhar has seemingly embarked on a wrecking spree, delighting the enemies of Zardari and gratifying those sick of living with a broken system of governance. But the immediate targets are not necessarily the agenda.

If you imagine the judiciary as a bullied man constantly surrounded by his tormentors, the executive, the legislature and the army, what CJ Iftikhar may be doing is no more than finally fighting back. Shoving and pushing with the might of popular support fully behind it, the superior judiciary at last has a chance to mark out its territory and punish those who try to encroach on it.

Of course, this being Pakistan, the battle is being fought in a messy rather than surgical way.

The Supreme Court really should not be trying to fix the price of sugar or petrol, it should not be speculating about the possibility of using transgender individuals to recover bank loans that may or may not have been illegally written off, it should not appear to be compromising the principles of due process in the pursuit of the corrupt.  But neither, in fairness, has CJ Iftikhar’s court brought anything to a shuddering halt or unleashed total chaos. In fact, in the PCO judges case, the court gave parliament a grace period to figure out what it wanted to do with the ordinances Musharraf tried to protect with the November 2007 emergency — an olive branch so thoroughly lacking any constitutional basis that some believe the court has resurrected the doctrine of necessity in all but name.

So, if what CJ Iftikhar is really doing is fighting for his institution’s rightful space in the constitutional framework, the challenge for him going forward will be to calibrate his institution’s attacks — arguably, almost-too-late self-defence — such that they don’t cause the collapse of the government.

As Faisal Siddiqi, a fine legal mind who expounded this alternative theory of judicial activism in May, has written: ‘[The trend] is critically dependent on the continuation of the democratic process because there can be no independent judiciary without constitutionalism and there can be no constitutionalism without democracy.’

We needn’t automatically fear a court that may be trying to instill respect for its institution in other state institutions that have historically treated it with contempt. But we should fear a court that may be afflicted by the all-too-common Pakistani disease of not knowing when to stop, when to sense an irreversible crisis and back off for the sake of institutional stability.

2010 will surely go some way to giving us the answer. All we, the people, the outsiders, can do is perhaps invoke a prayer in keeping with the season: dona nobis pacem — grant us peace.

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