ON the face of it, Chief Justice Iftikhar Chaudhry’s remarks on Saturday that parliament cannot enact any law that is repugnant to the constitution, fundamental rights and Islamic provisions seems innocuous and uncontroversial — after all, few would argue that parliament’s right to legislate is unfettered. But the comments of the chief justice have come against a particular background. One, at no point has the present parliament attempted to legislate against what can be considered the basic features of the constitution. After the 18th Amendment, the Supreme Court did question the new procedure for appointment of superior court judges but legal opinion was divided on whether parliament had exceeded its mandate or not. Two, it is the activism of the court, which seemingly reached its apogee with the ouster of former prime minister Yousuf Raza Gilani, that would appear to be the more immediate threat to the democratic order — not speculative acts by the government that may or may not occur. In the face of unprecedented activism by the court, the government has by and large remained unprovoked, even going so far as to accept the loss of one prime minister and then its first-choice replacement prime minister in a matter of days.
Crucial to the stability of the democratic order in the days ahead, then, may well be the choices the Supreme Court itself makes. The first test will be the fate of the new prime minister: will the court move to oust him too if he refuses to write the so-called Swiss letter, as is likely? Given that elections are now much closer than they were when the court reactivated the NRO issue in January, judicial restraint at this point in time may not necessarily be seen as a climbdown by a judiciary intent on carving out an equal space for itself alongside the traditional power centres in the country. However, if common sense is to prevail, the political temperature will have to be brought down first — and that would entail the judiciary following some of its own advice. As Chief Justice Chaudhry remarked on Saturday, “No one can claim supremacy over and above the law.” That is advice well worth reflecting on, for it is the court that seemed to make part of the constitution redundant by short-circuiting the disqualification process last week.
Finally, as whispers grow that some kind of quasi- or extra-constitutional arrangement is being contemplated in response to governance woes and in order to oust an unpopular government, the court, in line with its earlier commitment against such interventions, is expected to stand on only one side: that of the law and constitution.