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The people’s court?

October 30, 2012

IN the coming week or so, much will be written about the Supreme Court’s (SC) latest involvement in the domain of governance — this time in the shape of CNG prices — and the legal premise upon which this intervention was based.

Leaving jurisdictional analysis to those best suited for this task, there are several other facets of the court’s role and our recent political history, which when elaborated upon, will offer a more coherent picture of why the Supreme Court acts on certain issues in certain ways.

As a preamble to the larger discussion, it’s important to highlight that over the last five years, the law has been accorded a technical, apolitical status in public discourse.

The SC, the apex body of our legal system, often talks about interpreting the law over and above the domain of politics, and within the domain of justice, and it’s this particular portrayal that often finds its way in mainstream media analysis of the higher judiciary as well.

In our case, especially in the aftermath of such judgments, most acts of the judiciary are explained in terms of its legal stature, by invoking the principle of jurisdiction, and by elaborating on its interpretations.

A complementary explanation though, one that is seldom given, would be to conduct a more sociological analysis of the court’s power, specifically by looking at the relationship between its public interactions and politics.

The higher judiciary and the army are both institutions which, regardless of their bureaucratic nature, are operating in the public domain. They communicate with the public through a wide variety of ways — press releases, media statements, admission of petitions, public appearances — and offer viewpoints on matters of public importance.

In each interactive instance, there is a particular kind of politics that is being generated, simply by the response it elicits from political representatives, and the public at large.

If the SC rules that the existing mechanism of setting the price of CNG is baseless, and that the current rate is strangling consumers, it is not only preventing another public actor — in this case the executive — from exercising power, it is also encouraging a response from the people — in this case ‘consumers’ — by according them a central status in its decision.

This is politics 101.

In fact, looking at our judicial institutions — the post-restoration version or earlier editions — as being somehow above the domain of politics is a view that runs counter to our political history and especially to events of the past few years.

Starting from the post-hoc legitimisation of the dissolution of the constituent assembly, down to the approval of every provisional constitutional order till 2007 in the name of national interest, each act was crucial in informing the larger debate of who is allowed to hold ‘legitimate’ political power in the name of the people.

So to hone in on Chief Justice Iftikhar Chaudhry’s court, the one thing that needs to be reiterated is that its immediate power, in the eyes of both  political parties and the citizenry at large, can be traced to a very public, very political, restoration movement.

Moreover, it is completely plausible to argue that the rhetorical respect for rule of law — a popular slogan in 21st century Pakistan, and a major source of the Supreme Court’s popularity — is itself a political agenda.

In 2007, the movement to restore the chief justice, depending on whom you talked to, was taken as a movement in favour of rule of law, a movement against arbitrary rule by a dictator, a movement to bring justice to the masses, and a movement to create a more equal society.

Hence the appeal that rule of law currently enjoys amongst the citizenry is not because law has some transcendental, God-given charm, but because people, especially the urban middle class which formed the core of the pro-judiciary movement, now see law, its interpretation, and its implementation as an instrument of rectifying perceived ills and wrongs.

In the same vein, the messianic status of the higher judiciary is not solely because of its legally defined role as the guardian and interpreter of law and the constitution, but because it elicits popular appraisal through its intervention in governance, by admitting petitions on matters of public interest, and by its very public, and at times confrontational application of law.

In fact, one could reasonably argue that the popularity of the court, amongst certain segments of society, continues to exist because it knowingly and actively chooses to circumvent decisions made by a government that happens to be unpopular in the same segments.

Through their public interactions, in the shape of the lawyers’ movement, and by consistently invoking the plight of the common man in their judgments, the SC has cultivated a constituency within the Pakistani polity, and has worked actively to keep a hold of it.

Rhetorically speaking, however, the court continues to present itself as a supra-political, national interest-serving institution, and one that is never bogged down by the parochialism characterising politics in contemporary Pakistan.

For the sake of analysis and discourse, both mainstream and alternative, the accuracy of this self-assessment needs to be rigorously tested and critically examined.

To continuously see the court’s actions as ‘legal’ rather than ‘political’ betrays a blind spot on our part, and looks eerily similar to occasions when segments of the intelligentsia nod along in tune to the supra-political, national interest-serving claims of another state institution.

The writer is a freelance columnist based in Islamabad.