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More trouble

February 04, 2018

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IT’S our version of the gang that couldn’t shoot straight. Part circular firing squad, part regular firing squad, and part wedding video of aerial firing that sends guests and gunmen alike scrambling.

Welcome to 2018.

Possibly, arguably, already worse than 2017. Because with the latest act to join the national circus, we have a full programme. Part tragedy, mostly comedy, it’s wholly unpredictable. At least when it comes to guessing what may come next.

By jumping the gun and firing off in all directions, the timeline for judicial controversy has been brought forward. The steady hand has given way to mercurialness.

Politeness — and fear of the gavel — will cause most to either look away or pretend to examine the weeds and draw out nuance and theory. It’s apparent there is none.

Because this is a war the judiciary can’t win.

The populist, people-oriented aspect we can set aside. If the court wants to probe the lurid and the tawdry to protect us all, go right ahead. If it wants to throw crumbs at the poor and the desperate, why the hell not.

It’s not like we were on the verge of great reform.

Two military-court constitutional amendments in two-and-a-quarter years settled that debate. There has not and won’t be anything that cuts closer to the heart of judicial power. Because the first and last rule of institutional relevance is to protect institutional turf.

It’s what caused the power of antiterrorism courts to be watered down all those years ago and what has left the FSC in limbo. A pyramid can only have one tip. And that has to be the SC.

Even, funnily enough, in times of dictatorship. Because the court has positioned itself as the only institution that can deliver legitimacy in the first instance. Ever wonder why a newly installed dictator has not tried a different path?

Say, by holding a rigged referendum in the first 90 days of taking over — eminently possible — or throwing together a council of elders to bestow legitimacy?

The dictator can’t because the court has positioned itself — not individual justices who constitute the court, but the institution itself — as the only place where legitimacy can be sought and granted.

It’s why military rule is synonymous with PCO.

Judicial reform, or the distant dream of judicial reform, died when the court validated the military-court constitutional amendments because it reinforced the status quo. What the boys want, the boys get — as long as they’re polite enough to allow the court to give its imprimatur.

So let the court have its say and fun in a broken system where there’s largesse to be bestowed and public approval to be won. We weren’t exactly on the verge of great judicial reform anyway.

The problem is in the political realm.

There’s already a bit of queue and you can bet that there’ll be others lining up soon enough. Because what greater honour than to have a chance to please the boss and show your loyalty by lining up to be locked up for contempt.

One down, two to go. And then another and another. It is, after all, an election year.

If you’re Nawaz, you may even encourage it. The more it looks like the court has a problem with him, the less legitimate his judicial woes will seem. And that’s an edge he needs in a season of electoral gridlock and uncertainty.

Short of a direct takeover, the only other realistic possibility of keeping Nawaz shut out of the system was a solidly reasoned, good-precedent-setting judgement. That didn’t happen — not because Nawaz says it didn’t happen, but because everyone can see it didn’t happen.

But fate and the sequence of judicial elevation may have created the tiniest of openings for a third possibility. Of the five who disqualified Nawaz, number one and number two in seniority are slotted to become the next CJP, and after a gap of one, the CJP after.

All of that, though, would only kick in after an election and after parliament has had a few months to settle in and bargain over the constitutional fate of Nawaz.

A smoother, less controversial path to nailing the door shut on Nawaz’s return to electoral politics would be for someone other than the original five to reach the same conclusion — and to do it in a more measured tone.

Instead, by jumping the gun and firing off in all directions, the timeline for judicial controversy has been brought forward. The steady hand has given way to mercurialness.

And mercurial justice is the best friend of the politician in trouble seeking electoral redemption.

From here, every little bit will add to the story of political victimhood. If the judge vows that the door has been slammed shut on dictatorship, it only serves to remind everyone of the possibility of dictatorship.

If the judge avers that justice will be done in every instance, it only serves to remind everyone that maybe justice hasn’t been done in a certain instance.

If the judge starts locking up people for contempt, it may grow the queue — or, dangerously, encourage Nawaz to jump to the front of the queue. A bad idea doesn’t turn good by doing more of it.

This is a war the judiciary can’t win.

The writer is a member of staff.
cyril.a@gmail.com
Twitter: @cyalm

Published in Dawn, February 4th, 2018