SO now we know. The Supreme Court doesn’t have the gumption to pick the nuclear option in a fight of its own making.
Many will whisper the reason but few will say it out loud for fear of attracting the court’s ire. So with a prayer and the hope that a spirit of magnanimity prevails, here is a question to ponder: is the court of Iftikhar Chaudhry an ideologically divided court?
To the outside observer, evidence suggests that there are hawks and there are doves and often what emerges as case law is a compromise between the two groups.
It’s been honed to near-perfection by now: the hawks nudge everyone towards the brink and then the doves herd everyone past the well of death.
Rewind to January. The bench tasked with getting the NRO order of December 2009 implemented issued its own order. Instead of decisive action, ‘six options’ were presented and the matter referred back to the chief justice for a decision by a larger bench.
In those six options lies perhaps the most direct evidence of the gap in thinking between the hawks and the doves.
The doves’ approach is broadly: let political matters be decided in the political arena; avoiding putting so much pressure on the system that everyone, including the judges, may end up going home; and take care to not get dumped with all the blame for triggering unintended consequences.
The hawks’ thinking: let the heavens fall, our duty is to uphold the law; the government is epically corrupt and monumentally incompetent and is a threat to the interests of the country; the winds of history are at the backs of the judges and theirs is a historic opportunity; and a new constitutional order will only emerge if bold decisions are taken.
When converted into judicial-speak, the positions of the doves and the hawks on the matter of the Swiss letter are set out in option six and one respectively of the January order.
Parsimony isn’t a strong suit of judicial-speak, so bear with the lengthy reproductions. First, the doves:
“Option No. 6: The constitutional balance vis-à-vis trichotomy and separation of powers between the Legislature, the Judiciary and the Executive is very delicately poised and if in a given situation the Executive is bent upon defying a final judicial verdict and is ready to go to any limit in such defiance then instead of insisting upon the Executive to implement the judicial verdict and thereby running the risk of bringing down the constitutional structure itself this Court may exercise judicial restraint and leave the matter to the better judgment of the people of the country or their representatives in the Parliament to appropriately deal with the delinquent.”
Translation: accept the limits of judicial power and drop the matter or else run the risk of system collapse.
The hawks’ option:
“Option No. 1: … A chosen representative of the people deliberately violating such a sacred trust and disregarding his commitment in that regard with Allah Almighty may hardly qualify to be accepted as ‘ameen’…. Court has an option to record a finding in the above mentioned regards and it may hand down a declaration to … the effect of a permanent clog on the Prime Minister’s qualification for election to or being chosen as a member of Majlis-e-Shoora [Parliament] or a Provincial Assembly. Somewhat similar oaths had also been made by the Co-Chairperson of the relevant political party before entering upon the office of the President of Pakistan and by the Federal Minister for Law, Justice and Human Rights Division before entering upon the office of a Federal Minister and apparent breaches of their oaths may also entail the same consequences.”
Translation: For violating their oaths of office by defying a categorical order of the Supreme Court, chuck out the PM, Zardari and the law minister from politics forever.
Positions thus staked out, at extremes from one another, the demands of the hawks and the doves are laid before the chief justice.
He is the vital man. Hawk or dove, to the last man they follow their leader. And no decision of the chief justice has been as vital as the one to move with consensus. No split judgments, no dissenting opinions, the court of Iftikhar Chaudhry speaks as one.
It’s an approach with consequences outside the judicial arena.
Appeasing the hawks meant hauling up the prime minister for contempt after he bluntly refused to do what the court has ordered and hence the circus of the past months.
Listening to the doves meant a legally and constitutionally sound judgment that has left everyone wondering what was the point to picking a fight the court wasn’t willing to win.
We’ve seen this before, particularly with the 18th Amendment. The hawks then wanted a hermetically sealed judiciary in which the judges themselves decide who can or cannot become a judge. But when parliament decided otherwise, the hawks pushed for judicial review of the amendment and pressed for it to be overturned.
Worried about judicial overreach and the court being dragged through the mud, the doves fashioned a compromise: a judgment that made clear what the judiciary wanted without directly ordering parliament to do the court’s bidding. Parliament chose to listen to the judicial advice and the 19th Amendment was the result.
Compromises have a habit of leaving everyone unhappy and unsatisfied. Pick a fight you can win or don’t pick it at all. But behind monoliths there are divisions and appeasement becomes necessary.
There will be more heart-stopping moments, dashed hopes and hand-wringing ahead because the hawks can’t be ignored. But better hawks who have to be appeased than hawks who get their way in the end.
The writer is a member of staff.