THERE is a new chief justice in town. And as with any transition at the big white building of justice, much is usually written about the old and new ‘sheriffs’, for in countries such as ours, it is hard to assess the performance of those in power when they are present.
Only in their retirement do many of us find the courage to write about their tenure, except for those who are elected; they are generally least likely to take offence or are too powerless to do so.
But I digress. As the transition took place, much has been written about the one who left and the one who has now taken over. Some of the commentary has been rather detailed and full of legalese — about judgements and what they wrote and didn’t and how legal it was. These details are for the more legally literate.
For the rest of us who view the world more simplistically, our adjudicators’ behaviour is easier to understand in the larger context of politics.
For politics in our pure land is played out through the legal and constitutional framework, even though rules and laws have little to do with it. But to say all too often this is not deemed acceptable, debating legalese is far more time-consuming and complex. Indeed, what would television discussions be without two lawyers with opposing views who can argue at length and fill air time?
However, behind it all, there is one reality: a power struggle called politics. In this, the constant are the politicians and the establishment. The third player, post-2008, is the judiciary.
The establishment’s power is the reality but it lacks legitimacy or legal power, as long as we are playing at being a democracy. And this handicap becomes a little less relevant when the judiciary can play an ‘effective’ role. From Iftikhar Chaudhry to Saqib Nisar, the law conveniently led to results which made politics possible.
Pakistan’s troika usually sees two of the three stakeholders tilt the balance against the third.
The twice-resurrected chief may have led to Musharraf’s downfall but his relationship with the powers that be was far more complicated, though little of it has been documented, as history rarely is in Pakistan.
His court played an important role in keeping the PPP in check and at times in disarray, i.e, a prime minister’s disqualification, as well as suo motu actions on rental power projects and the LNG deal. There was also Memogate, which when it erupted was feared to lead to the then president’s indictment if not more. And despite much bluster from the PPP, there was little chance of it defying any order of the court.
Just as an aside, that period was also marked by many cases in which the plight of the disappeared were discussed, but the judgements given in those cases, like other legal documents, require a legal brain. What would an ordinary journalist know about those who were recovered and those held accountable? But the commission of the missing, headed by a retired judge, Javed Iqbal, was formed in those heady days.
Saqib Nisar played a similar role when the PML-N government was ruling the roost. But this role shaped up once the power battle between the other two had begun and decisions taken. The disqualification of another prime minister followed.
Perhaps, one can venture so far as to say that as with the power of Article 58-(2)(b), the powers were exercised and implemented because of the player that put its weight behind the president in the 1990s. The equation which emerged post-2008 was similar.
In other words, Pakistan’s troika usually sees two of the three stakeholders tilt the balance against the third. And in this power game, rarely has the political side joined hands with the judiciary against the third.
The elections in KP and Punjab saw a split among the traditional allies, when it seemed the chief justice and some of his colleagues felt the Supreme Court should push for elections in the two provinces within the constitutional limit of 90 days.
However, this was not acceptable to many. No wonder then, parliament, overnight, found the strength to rein in the judiciary. Political parties which had earlier capitulated to the judiciary and made changes to the 18th Amendment once the then Supreme Court had pronounced on it, now took a stand and changed the law to dilute the chief justice’s power to form benches. Neither were the elections held because the executive found reasons enough to avoid the exercise.
Indeed, there is no doubt the former chief justice was unable to manage the differences among his colleagues but it is worth considering how public these differences became. There was a history to this; the case against the recently sworn-in Chief Justice Qazi Faez Isa was perhaps the beginning of it. However, previous Supreme Court chief justices had also been guilty of similarly bad habits when only their blue-eyed colleagues were seen to make it to bench after bench.
The Iftikhar Chaudhry court would rarely have dissenting judgements but none of this made it past hushed gossip. Was the silence simply due to the populist chief justice’s charismatic personality? Or because those left out knew the chief justice had too many powerful allies and couldn’t be challenged? And, what was the advantage of Iftikhar Chaudhry was the disadvantage of the last chief justice, once he and his ‘likeminded’ colleagues took a position on the issue of elections within 90 days.
The point here is that the judiciary’s independence perhaps may not be simply linked to the inhabitants of the Supreme Court and the ability of the man or woman heading them. It is also linked to the larger politics in Islamabad. Perhaps this is why there are many who are already predicting the new incumbent can once again get into trouble. As with those who passed before him, the powers he enjoys are sometimes linked to the politics playing out in the building beside the Supreme Court on the Constitution Avenue.
The writer is a journalist.
Published in Dawn, September 19th, 2023