Breathing room

Published October 22, 2010

A FEW hours after hitting ‘Send’ last Thursday on ‘The judicial non-crisis’, the judiciary-executive clash entered a new, utterly mysterious, tremendously unsettling, round. So much for crystal-ball gazing in Pakistan. And yet, seven days later, with the 18th Amendment order now in, it seems status quo may hold after all.

No one seriously expects anything to come of the inquiry into the media reports of last week. Just like the inquiries into the Sialkot lynchings and the police attack on lawyers in Lahore, the proceedings will quietly be forgotten and drift towards some kind of innocuous inconclusion.

And now, after a quick read of the 18th Amendment order, it seems pretty clear 175A — the judicial appointment process under the 18th Amendment — has been operationalised, though the court has dictated its operation in such a manner that it will pretty much look like the previous appointment process.

In lay terms: no fresh constitutional amendment likely; the chief justice of the Supreme Court will continue to be the guiding force in the appointment process; and, if parliament objects to any judicial nomination, the reasons for doing so will be justiciable by the Supreme Court — a neat circularity guaranteeing the pre-eminence of the chief justice of the SC in the appointment process. All in all, judicial read-down of the constitution parliament isn’t likely to get too bothered about.

So the status quo once again looks set to hold for some time. Or does it?

What can be gleaned from last week’s events in the judiciary-executive saga is this: the one who wants to change the status quo doesn’t have the means to do so; the one who ought to be interested in continuing the status quo appears to lack the will or intention to bring the temperature down.

Because of the configuration of power at the moment — institutional, political and in terms of public support — the instability-stability state of affairs can be stretched out for many months and perhaps even a year or more (which is when the next election cycle will kick in, assuming other events don’t intervene).

The problem is, when emotions run high and the atmosphere gets too heated, mistakes occur. A thinks B is out to get him, and so goes for a pre-emptive strike. B is convinced A is out to get him, so attacks before he is attacked.

Institutions and people have memories and the more incidents such as the fiasco over non-existent de-notification order pile up, the more positions will harden on all sides and the more likely someone will make a mistake.

Remember the shower-room massacre of the Navy SEALs in The Rock, the Nicolas Cage movie from the ’90s? Everyone pointing guns at each other and yelling, no one willing to back down, screaming, shouting, until someone accidentally knocks over a loose brick and all hell breaks loose?

Until last Thursday, even by the low standards of the madness that can be Pakistani politics, it seemed incomprehensible 17 Supreme Court justices could march into court on the basis of a rumour.

Or was it a rumour? In what was perhaps the most extraordinary moment of the day last Friday, as the entire courtroom was on its feet waiting for the judges to rise and file out, CJ Iftikhar and the attorney general had an astonishing exchange.

A visibly agitated CJ Itikhar, speaking in Urdu, said quite plainly he knew the rumours were true. Because the court had already adjourned and it appeared to be an unofficial, though sharp, exchange, many missed it.

But had the comments come during the proceedings proper, the reverberations would have been instantaneous.

Pandemonium would have broken out, with reporters and ticker guys (yes, news channels have dedicated ticker guys) falling over each other to rush outside the no-cellphone courtroom to report the ‘breaking news’. The paroxysms of TV anchors and opportunists would have been award-winning.

When emotions run high, things tend to snowball.

Same goes for the government. In a narrow, legalistic sense, the government probably had a case there was no need to file a statement in court on Friday. But narrow, legalistic reasons weren’t motivating the government that morning.

Having a sense of what the answer would be, I asked around why the government didn’t file a statement before the Supreme Court. The most colourful answer was also the most revealing: a representative said the government wasn’t about to wear bangles and dance at the court’s feet.

The more mature, well-thought-out response came from the prime minister in his speech on Sunday. But by then the crisis had largely been defused.

By now, it’s fairly obvious some on both sides are spoiling for a fight. Thus far, wiser counsel has prevailed and fatal outcomes avoided. But false alarms have consequences; how many more iterations before things really do fall apart?

The common-sense route to bringing down the political temperature is obvious: the government must realise the onus and responsibility lies with it to try and improve the atmosphere.

It’s not about morality and principles, but about capitalising on outcomes. Last Friday and yesterday — the emergency hearing and the 18th Amendment order — actually revealed the constraints which apply on the Supreme Court.

For various reasons — internally for judicial reasons and externally for political reasons — the court isn’t really in a position to put the government to the rack; it appears limited to being an occasional, and occasionally serious, annoyance.

This provides an opening for the government to broker a détente. Call off the attack dogs whispering into ears in Islamabad;

rein in the noisy, and noisome, Babar Awan & co; cooperate with suo moto actions into second-tier corruption tales; and get serious about the business of governance on at least some fronts.

Do that, and even if the intention remains on the other side, the threat will begin to recede. Unhappily, there’s little indication the inner circle of Zardari is contemplating a course correction of any kind.

Stranger things have happened, though, and now’s the time to do it. Because while there’s little certainty when the next crisis may hit — months or weeks? Days? Perhaps hours? — it seems pretty certain there will be another crisis.

At the moment, the government has a choice: strengthen its armour to fend off the next crisis better or hope to limp through it and somehow emerge on other side, even weaker but still alive.

Care for a wager on which route Zardari & co will choose? History suggests just one route, but it would be a relief to be proved wrong.


In defamation’s name

In defamation’s name

It provides yet more proof that the undergirding logic of public authority in Pakistan is legal and extra-legal coercion rather than legitimised consent.


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