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Supreme conflict

December 19, 2011

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“At various moments in America's history, the Supreme Court's decisions were contested, disobeyed, or ignored by the public and even by the president and Congress”. — Justice Stephen Breyer of the US Supreme Court.

THE judicial-executive conflict arising from the NRO and the memogate cases is the mother of all judicial conflicts. Firstly, it is a conflict between two 'supreme' institutions i.e. the presidency and the Supreme Court. Secondly, the consequences of this conflict will have implications for the democratic constitutional process, and the possibility of civilian control of the military establishment, in Pakistan.But like all things in life, this judicial-executive conflict has no simple consensual explanation. In contemporary public discourse, three explanatory frameworks have emerged.

Firstly, the legalist school that identifies the roots of this conflict in the purported unconstitutional, illegal and unethical actions of this government and the presidency. In short, the entire blame lies with the government and the presidency.

Secondly, the political school that identifies the roots of this conflict in the purported excessive exercise of judicial power by the Supreme Court and its purported lack of judicial restraint in adjudicating upon political and executive matters. In short, the entire blame lies with the judiciary.

Thirdly, the idealist school that identifies the roots of this conflict with the lack of good governance and bad decisions on behalf of the executive and presidency and the lack of judicial restraint by the judiciary. In short, the blame is equally shared by both the executive/presidency and the judiciary and urges both the executive/presidency and judiciary to act within their 'constitutional limits'.

Let me put forward a fourth explanation: constitutional conflict between the judiciary and the executive, or the legislature, is inevitable but constitutional breakdown between these institutions is avoidable. The blame for this constitutional conflict lies not in institutions or individuals but in the very nature of our constitution, our history, modern judicial developments and the democratic transitional process.

The very genetic framework of our constitution envisages a checks-and-balances role for the judiciary vis-à-vis the executive i.e. constitutional policing. This leads to a contradictory relationship, which leads to constitutional conflict. Therefore, to dream of a conciliatory relationship between the judiciary and the executive is to dream of a constitutional wrong.

It is precisely for this reason that our judicial history is full of constitutional conflicts between the judiciary and the executive. Depending on the strength of the judiciary and the executive, the Pakistani judiciary has engaged in a policy of judicial quietness, judicial defiance and judicial revolt/defection throughout its history.

For example, between 2005 to mid-2006 our Supreme Court adopted a policy of judicial quietness; between mid-2006 to 2007 a policy of judicial defiance; and after Nov 3, 2007 the same Supreme Court revolted against the Musharraf regime. Therefore, judicial constitutional conflict is in our historical blood and is nothing new.

And we are not alone. Modern judicial developments in India, America, Latin American, South Africa etc are full of judicial-executive constitutional conflicts. The roots of this judicial-executive conflict in these countries are two-fold. Firstly, more and more political, social, cultural and economic issues were, and are, being brought to the courts. Thus the judicialisation of the state and societal issues. Secondly, more and more political battles were, and are, brought to the courts by opposition parties and groups, thus, the judicialisation of politics. Both these trends automatically lead to conflict with the executive.

As noted by scholars of democratic transitions in Latin American countries, this judicial-executive conflict is further enhanced in the initial periods of democratic constitutional growth for two reasons.

Firstly, both the judiciary and executive are in the process of defining and enhancing their constitutional roles. The biggest constitutional myth is the notion that there are easily discoverable 'constitutional limits'. Constitutional limits are defined and enhanced through a power struggle between the executive and judiciary. Therefore, mutual enhancement of constitutional powers by both institutions means a conflict between them.

Secondly, status quo powers, like the military, are constantly trying to reverse, or control, the democratic transition by pitting the judiciary against the executive and vice versa. The military breeds, and misuses, the mutual mistrust between the judiciary and the executive.

But let us appreciate the fact that despite repeated doom predictions by pundits for the last nearly two years, both the PPP government and the Supreme Court have controlled their constitutional conflicts from being converted into constitutional breakdowns. This has been a remarkable display of judicial and political statesmanship of not jumping the constitutional cliff.

And in this period of constitutional hopelessness, let us also appreciate the fact that despite the severity of the memogate issue, all giants of Pakistani politics, including the army, are before the Supreme Court trying to resolve this issue through a judicial process. The alternative to a judicial resolution is a military coup. Therefore, as in other countries, the judiciary is acting as a safety valve for democracy.

But the dangers of constitutional breakdown leading to direct, or indirect, military intervention is ever present. In order to avoid this, the executive and presidency has to give up their failed policy of defying judicial orders and has to fight their legal battles in court. The only road leading from Dr Babar Awan's policy of judicial defiance is off the constitutional cliff and to legal martyrdom for the government and the constitution. In short, the government should try to rigorously contest their cases through legal argument and strategy and not by challenging judges.

As for their Lordships in the honourable Supreme Court, one can only suggest to them Max Weber's law of unintended consequences. It would be a constitutional tragedy if the path leading to the weakening of the present presidency and this PPP government also leads to the unintended consequence of the strengthening of the unconstitutional powers and role of the military establishment. If that happens, it will be of little constitutional significance as to who is to blame.

The writer is a lawyer