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Pushing back

December 08, 2012


RARE is the moment that Asif Zardari is found on the right side of the law and constitution.

Even rarer is a whispered consensus among even the more ardent public supporters of the court that the judiciary has drifted into matters deeply questionable.

Never before have such moments arrived simultaneously.

The arcane here is more illustrative than the obvious, so forget about Arsalan Iftikhar, delimitation in Karachi and CNG for a minute and turn to the shenanigans in the Islamabad High Court.

Thirteen questions in a presidential reference and enough legalese to make the head spin can obscure the implications of the tussle over judicial appointments in the IHC.

Essentially, Judge A of the IHC has been elevated to the Supreme Court, necessitating a replacement chief justice of the IHC.

Judge B was by well-established precedent and in practice regarded as the senior-most justice of the IHC, the president has argued, and so by the law of seniority, the indisputable successor as chief justice.

But Judge C was nominated as the next chief justice of the IHC by the Judicial Commission, which initiates and effectively controls the nomination process for superior court judges.

Why chuck aside Judge B and install Judge C as the next chief justice?

The grapevine dare only whisper the answer: Judge C is a favourite from Quetta of the messiah from Quetta.

It gets more interesting.

Judge D of the IHC was nearing the end of his year-long appointment and the Judicial Commission had to decide whether to recommend retaining him or cut him loose.

Crowned next-in-line for the IHC chief justiceship, Judge C, the favourite from Quetta, helped steer Judge D’s permanent appointment through the Judicial Commission.

Judge D’s claim to fame?

Notoriously, he helped mount a heroic defence of Mumtaz Qadri in the Pindi Bar Association.

Remember those rose petals heaped on the sick little man who killed Salmaan Taseer? That was the Pindi Bar Association.

But Judge D has added something even more valuable to his resumé: the affection of the messiah from Quetta.

Zardari is right in refusing to sanction the changes in the IHC.

It looks like the appointment process is being manipulated to ensure a hermetically sealed judiciary in which the judges, and only the judges themselves, decide who can be a judge, with favouritism trumping legal precedent.

The pity here is that the politicians in the Parliamentary Committee are too timid to speak up, rendering what they know is a cut-and-dry case of judicial overreach into a murkier public battle between the presidency and the superior judiciary.

Massaging the judicial appointment process may seem small bore — until its effects come into focus.

That Kayani extension case in the IHC?

It was originally before the judge now elevated to the Supreme Court. He chucked it out in September.

Fast forward several weeks and the two rumoured favourites in the IHC gave the petitioner a second shot by expediting his appeal against the dismissed petition.

Not for nothing do some conspiracy theories exist here.

By this point, few can defend the court’s manifold and wide-ranging interventions with a straight face. Even the fiercest supporters of yore are quietly expressing doubts over the mission and ambition of the post-2009 judiciary.

Is it all madcap or is there a method to the madness?

The populist streak — slashing the price of CNG, chastising public servants, excoriating politicians for corruption — keeps the public on the court’s side, helping insulate the court from serious attack by the other players.

The flanks thus protected, the mission and ambition of the post-2009 judiciary can afford to be expansive. But where is it leading to?

The big event on the horizon is the general election.

Will an interventionist court step aside and let the other players get on with the business of deciding the country’s future political direction unimpeded?

We won’t know for sure until we’re at election time.

If the court refrains from injecting itself into the electoral process in a serious way, then God bless and three cheers for an evolving democracy.

But if the court does opt for a frontline role, then the electoral landscape has been readied over the past year for a direct and expansive judicial role.

Rewind to late last year, when suddenly a February deadline for preparing voter lists was imposed on the Election Commission of Pakistan, which had originally calculated it would have preliminary lists ready by April.

The initial reaction of many was, hang on, that’s the ECP’s business. As an autonomous and constitutionally created body with a mandate to conduct elections, the ECP isn’t supposed to be taking directions from others.

But the court pressed ahead and in a few months’ time the constitutionally unusual had become the accepted.

The Gilani ouster helped too. Everyone was so focused on the stubborn refusal of the PPP to write the damn Swiss letter that the circumvention of the ECP’s final authority in the disqualification process went unnoticed.

Stack on top of those events Waheeda Shah, dual nationality, the right to vote for overseas Pakistanis, questioning the constitutional status of the Balochistan government, and the recent delimitation intervention — and we’re in a transformed landscape where the court has established itself as a significant electoral player.

How big a player?

Work with the likelihood that the next election will produce a hung parliament and every seat will count in complex coalition talks.

Assume that the Pakistani proclivity of losing candidates to cry foul will have many pounding on the doors of the courts.

If the court were to pause the results in 15 or 20 constituencies on individual petitions or question the invariable shenanigans in swathes of the electorate, a game-changing role will become reality.

There are other possibilities of intervention, some easier to guess than others. Will any of them materialise?

Maybe or maybe not.

But that’s why pushback is so important. Step aside and everyone is left at the mercy of the mission and ambition of the messianic court.

The presidential reference is a well-thought-out and necessary attempt at pushing back. More will inevitably be needed if the judicial genie is to be prevented from stalking the electoral landscape.

The writer is a member of staff.

Twitter: @cyalm