Can the Judiciary Save the Coalition?

The drama of the Judges restoration, reactivation, or the reinstatement continues unabated. All in the country-- the media, the lawyers, the politicians, and the civil society-- are jumping in with their own reasons, theories, conspiracy theories and analysis to determine why this has become such a major issue and why no one can resolve it.

The restoration supporters claim that the Judiciary issue is linked with the democracy in the country. They argue that an independent Supreme Court provides the guarantee that the democracy will never again be rolled back in the country-- a lofty claim considering the past history of the Supreme Courts in Pakistan.

The Supreme Court Judges in Pakistan presented with cases requiring political judgment, usually demurred and sought the ruler’s advice on delivering decisions. Mostly, they deferred to the army generals for decisions. A military with enormous experience in managing politics, always knew what the right decision should be. Who else could have helped the apex courts in political matters? No one in Pakistan has more experience in political matters than the army generals.

The lawyers and their supporters in the political parties assert that after the refusal of one judge to step down, the power politics in Pakistan flipped so much that now no supreme court ever would seek the army’s advice on political issues. Hmmm…One judge did all that? One judge turned the power politics in Pakistan over its head with one shout of a mighty NO? Something isn't awake up there in the neural pathways.

The acting Chairman of the PPP alleged that the Judge said no to the army to keep his job. A huge sigh of disbelief from the lawyer community was heard all over the country. The acting Chairman cited the past performance of the Judge and the lawyers saturated the media denouncing the sacrilegious utterance. The PPP Chairman described the injustices to him personally and the media went berserk with allegations of personal animosity behind holding up the restoration of judges.

The Method Behind the Madness

The truth is lost somewhere in between many versions and numerous explanations. There is undeniable evidence of political motives behind the judge’s decision when he refused the army demand to resign. The Judge knew what was expected of him after he went on a spree of Sua sponte, suo moto actions. He overturned a decision to sell the Steel Mills. He asked for police reports in kidnapping cases among many other suo motoactions. The Public and the administration both took notice. The administration was uneasy and the general public slightly amused. After a series of suo motoactions, the political observers wondered why is he intimidating the administration. The bombshell came soon after. He committed the ultimate transgression when he asked the agencies to present the missing persons. No judge in Pakistan had ever dared to ask questions about the prisoners in the custody of the Pakistani intelligence agencies. These were not some ordinary missing persons. They were part of the war on terror that the Pak army had so solemnly undertaken to cleanse the country of Terrorism supporters. The war on Terror that was against the criminals who supported international acts of terrorism, was now all about using the illegal, barbaric, and questionable means as its principal methods to combat terrorism. There were two kinds of missing persons. The Baloch who had disappeared while fighting the army in Baluchistan and the supposedly terrorism supporters allegedly transported out of the country on rendition flights to the known and unknown destinations. The Judge targeted the people who were part of the War on Terror. The Judge hit a raw nerve when he asked that the missing persons be produced before the apex court. The army and the US both saw the challenge and soon he was summoned to the army house and asked to resign his refusal is almost a folklore now.

The reality is all that was politically motivated. The pattern breaking judicial activism did not happen because one judge, one fine morning, woke up on the wrong side of the bed. The Judge knew what he was exactly getting in to. He made the decision and he knew he was risking his job. Any Pakistani politician would have caved in the intimidating army house, where a President known for his nasty temper and some haughty generals ordered him to resign and on refusal held him up for hours. To his credit, the Judge showed his commitment to what he was doing and said NO. There is no doubt that his courage broke the pattern of unhindered control of the country by the army. After he was dismissed, the Judge and his lawyer supporters gave voice to the general public’s disgust and displeasure over his dismissal and public humiliation by the police on the National TV. The media carried the message. The pressure mounted and the ground under the army house begun to shake.

The Desperate Rush for Protection

The General looked to the politicians to bail him out and with the US help, signed a deal with the only prominent politician who was willing to make the deal. Benazir agreed the deal with the Pak army represented by the President and the Chief of the army staff thus making the Pakistan army a party in the deal. The US provided the go ahead and reportedly the assurance that the deal would be followed through. Two things immediately went wrong. Benazir came to Pakistan probably flouting the deal and after looking at the ground situation; she wavered and immediately paid the price.

The election results were not entirely unexpected. The PPP was expected to win, the MQM was expected to win, the PMLq was not expected to win many seats, and the PMLn was not expected to win as many seats. The number of PMLn seats was the only surprise in the whole elections. The party that had cut a deal with the army and the US expected results to go its way. The party whose leader was gunned down had to be rewarded. When you ink the deal with blood, you expect the reward.

The Judge initiated the run; the lawyers provided the steam, and Benazir added blood to it. The rules of fairness demand that all players are rewarded. Right now, only the Benazir team has the reward. The Judge and the lawyers are left hanging out there in the middle. Now the question is whether the Judge and the lawyers would have any chance to share the booty? The real answer is that they became the outsiders the day Benazir showed up in the country. The PMLn which got an unexpected reward in the elections was supposed to be the opposition party. The PMLn joined the coalition instead and now the PMLn, the Judge, and his supporting lawyers cannot be in the power nexus at the same time. That would be too much power concentration in the hands of groups from one province.

We need to step back and look at the situation immediately after the elections. Did the PPP go to the PMLn and signed the Bhurbon Agreement to ensure that the PMLn is not in the opposition? Was the Bhurbon accord signed to prevent the most powerful group, a strong political party from leading the opposition? Apparently, the PPP broadly had these goals in mind when it walked in the Bhurbon Hotel. The only thing it gave up was the agreement to restore the judges. The PMLn agreed to the deal to ensure that it controls Punjab and to force the PPP to have the Judge restored. It was a long shot but the PMLn decided to bet on it. The Bhurbon agreement was good for both Parties. The PPP got the center and the PMLn got Punjab. It was a win-win situation but the real players were put off by the deal and the emissaries rushed to Pakistan to remind the PPP that it already has a deal with the Pak army and the US.

The US always sets up the game with many options. The Pak army’s only game is to keep the political parties guessing and fighting each other so the army is the sole referee. The alliance did not leave much room for both the US and the army to maneuver the politics to their designed game plan.

The PPP from the very onset was not keen on the restoration of the Judges. The Judges and the Lawyers movement emerged from the Punjab. The Punjab based political parties provided the political workers to help the Lawyers. The Political parties from Punjab would have benefitted politically from the restoration of the Judges.

Handing the Supreme Court back to a judge and his team that stood up to the COAS and the President amounts to adding a new player in the already confusing power politics in Pakistan and was rightly considered a big No-no. The PPP shared the concern with the Army House.

The Dangers of Judicial activism

There is no government in the world that looks kindly to the judicial activism. Though the Judiciary is one of the pillars of the state, its sole job is to help resolve constitutional and political issues by correctly interpreting the constitution. The Supreme Court is not expected to compete with the administration or the Executive branch for power. The suo moto actions by the Supreme Court before November 3, 2007 were undoubtedly politically motivated. The judicial activism was viewed with trepidation in many circles in Pakistan. The effectiveness with which the Judges cornered the President and his ruling political party before November 3rd surprised the whole administration.

The desperate President shielded himself by declaring emergency. In a democratic set up, a political party cannot rely on imposing emergency to remove the encroaching Judges. In effect, the judges showed that they have the power to topple a government by initiating a series of actions that can paralyze the state and a political government easily. The judicial activism elevated the Supreme Court to another power player. The Lawyers and PMLn viewed the judicial activism as a good omen for their political ambitions in the current political situation in Pakistan. In reality, an out of control Supreme Court in fragile political conditions could add to the political instability. The Peoples Party wants to make sure that its government is not blindsided by a Judiciary whose political affiliations are well known. We don’t know what would the PPP constitutional package contain, but if it attempts to address the issue of judicial activism in the long run, then responsible Pakistanis should look at it with open minds. A better compromise would be to help the judiciary in either removing or drastically controlling the Presidential powers. After that goal is accomplished, the parliament should have the ability to review the court’s structure and check any likelihood of judicial activism in future with reasonable and prudent legislation.

Who Controls Pakistan?

The state control is slipping in Pakistan. Too many groups are striving and vying for the control. The Political parties, the army, the terrorist networks and the Taliban in the tribal area are unsure of the situation. No one knows who is really in charge. The ruling coalition issues orders but they are not complied. The President is determined to keep his people in place and the Parliament does not know how to deal with that. The two partners in the alliance are sending mixed and sometime conflicting signals to the people of the country. Baluchistan is heating up again. The inexplicable failure of the Parliament to set up some mechanism for resolving problems in Baluchistan is distressing. The classical signs of emerging anarchy are creeping up in the national politics. The first priority is to get control. The debate over the restorations of the Judges and the constitutional package is further muddying the already muddied waters.

The PMLn and the lawyers know that they can’t force the President to resign with the parliament support alone and they want the judges restored to go after the President. Behind the demand of the restoration of the judges is the larger attempt to manage the state by concentrating the political and judicial power in the hands of the pro-judiciary forces.

The PPP’s idea believes that by a constitutional package it can manage the Judge, his partners, the pro judiciary groups and their ability to control the state via the apex court. The PPP wants to consolidate its deal with the army and perhaps rule the country with a benign President. The PPP also wants to deny the PMLn and the lawyers an easy victory and a victory parade in Lahore. The power struggle between the pro judge forces, the smaller provinces and their representatives, and the army house can blow up in everyone’s face and all the gains made in the last one year or so could fade away very quickly.

Like the Lawyers and the PMLn contention that the restoration of the Judges would establish new power symmetry on the strength of an independent judiciary, the PPP idea of the constitutional package is also hogwash. Both Parties can wait to resolve the Judiciary issue. The delay would not break the country but the continued bickering would further erode whatever control is left with the parliament. They need to pay more attention to consolidating power in the Parliament. The efforts are underway to ensure that the PMLn walks out of the coalition. The lawyers and the PMLn need to think hard and avoid any hasty decisions.

The brooding shadow of the super power in the neighborhood is getting larger and darker. Any settlement in FATA needs authorized representatives of the State to cut the deals there. However, the strength of the parliament appears insufficient at this time to sign any peace agreement. The longer this situation persists, the quicker the actors would begin to drift towards the other competing groups and soon the situation would get out of hand. The ruling coalition should know that if the NATO or the US forces decided to enter Pakistani territory, the alliance will need the political muscle to deal with that situation or the fast developing events after the NATO actions would not only destroy the parliament but would also hasten the process of Balkanization of the country. The political vulnerabilities in both FATA and Baluchistan don’t leave much time to be bogged down in the Judiciary restoration debate.

Can the brave Judge come forward one more time to save the dying hopes of the civilian rule in Pakistan? The country is headed to a period of uncertainty, indecision and a breakdown in the state apparatus. The warring tribes, the super power, and the people of Baluchistan are restless. The resolution of the Judiciary issue is not the make or break point for either the democracy or the country.

The failed presidency and the army house has brought the country to a point that more pressure on the politicians might just take away the flexibility that they need to resolve the crisis in Baluchistan and in the Tribal areas. The Judges and the Lawyers need to create breathing room now to help the country one more time.