Viewpoint: The crisis we had to have

Thursday, 28 January 2010 11:22

ARTICLE : The ongoing political crisis has divided this society into two camps, one supporting the President and his men along with their party and non-party defenders and sympathisers as they confront a newly and aggressively independent judiciary, and the other pressing for triumph of the higher notion of the rule of law. Both say they want to strengthen democracy.

Self preservation, of course, is the uppermost concern of the President and others in the government. But there are outsiders too in the media and civil society, who are critical of the judiciary for declaring null and void ab initio the so-called National Reconciliation Ordinance (NRO) as discriminatory, and reviving all cases against the President, some of his political associates and many others.

Initially, the government did not seem to be in the mood to comply. In fact, some of the ministers tried to test the limits of the judges patience, defying the court instructions and bringing it into disrepute through insinuations, even openly accusing the CJ of having had a secret meeting with PML-N leader Shahbaz Sharif. Their cohorts in the media tried to help with irrelevant, even mischievous arguments.

A prominent media personality, for instance, publicly offered a simple solution to the President to help him get rid of the Chief Justice: restore the 1973 Constitution in its original form, he suggested. This way the Opposition will get what it wants from the removal of the 17th Constitutional Amendment, and since it gave the CJ only a three-year tenure, the troublesome incumbent could be sent home.

But things are not simple anymore. Every twist and turn of events is being keenly reported and analysed by a watchful media. The government itself complicated matters when it clubbed other contentious constitutional issues, such as provincial autonomy and the ANP s demand for changing the name of NWFP, with the repeal of the 17th Amendment.

Besides, the PML-N s stated position has been to restore the Constitution to where it stood in October 1999, when it was replaced by General Pervez Musharraf with the infamous provisional constitutional order (PCO) and subsequently subjected to various anti-democracy distortions.

Some others have been critical of judicial activism, referring to judicial traditions in democratic countries like Britain, on which our system is modeled, to point out that judges should not be seen but only heard through their judgements. Indeed, that is how it should be. But in our fragile democracy, state institutions are far from being mature.

We have democracy in form only. Our Parliament is not fully empowered; and in contravention of the spirit of the Constitution, instead of the Prime Minister, an indirectly elected President exercises executive power. Since the other two organs of the state are not performing their respective functions, the judiciary has been stepping in to hold to account people as well as public sector organizations accused of wrongdoing.

Judicial activism is not a bad thing as long as it does not turn into adventurism. We don t see it in established democracies like Britain and the US because, unlike our situation, the other branches of the state provide little justification for it. Yet there are several examples of judicial activism in our next door democracy, India. Even in the US, whenever an opportunity presented itself, the apex court showed its inclination to do likewise.

A recent example is that of the verdict the US Supreme Court gave in a case related to the administration s healthcare bill. The Democratic Party leaders are accusing the court, especially its four rightwing justices, of activism in aid of special interest lobbies, who work for insurance companies. The apex court, they say, has given new leverage to special interests to spend money in order to win the legislators votes.

In our case, though, bad governance justifies judicial activism in a wide range of areas, from human rights abuses to mismanagement of public sector entities, which is why it is widely welcomed. Somebody has to correct the wrongs; if the government does not do its duty the people will look towards the judiciary for intervention.

A section of the pro-judiciary camp has begun to show impatience with the government for its inaction on the NRO case related responsibilities. In fact, the lawyers community has split on the question whether or not to put pressure, at this point, on the government to ensure compliance.

The Supreme Court Bar Association and the Lawyers Co-ordination Council gave a call for a countrywide protest strike for today, ie, January 28, but it had to be reviewed after the community s leading lights distanced themselves from the call and the high court bar associations in Karachi and Lahore as well as various district bar associations refused to go along.

Prominent figures in the legal fraternity want to give the government time to do the needful. They also point out that the Supreme Court is powerful enough to have its verdict implemented. Their counsel to fellow lawyers is to wait and see. There is a good reason to do that.

The Prime Minister has held out firm assurances more than once that the government will implement the court decision, and that there will be no clash between the two institutions. Some of the ministers who benefited from the NRO have also been appearing in courts to obtain bail before arrest. That is a positive sign. Nonetheless, a question mark still hangs over the cases involving the President.

The government is yet to implement the court s directions regarding those cases. Most people want revival of the cases, although with differing motives. The President s opponents want to see the back of him, but those interested in bigger democratic principles correctly insist that even if he has to go, things should proceed strictly within the confines of the Constitution.

Meanwhile, questions have also been raised about the CJ s recommendations pertaining to the appointment of a recently retired judge in an ad hoc position, and also the elevation of a Lahore High Court judge to the apex court in disregard of the seniority principle set in an earlier precedent.

The expectation is that the CJ will give due consideration to the valid objections the President has raised, and not insist on having his way. Thus not only the executive, but the judiciary is also being asked to follow the law in letter and spirit.

The antagonists in the present drama may be the executive and the judiciary, but from the public perspective it is about the all-important democratic principles of the rule of law and constitutionalism. Hopefully, it will lead to the victorious culmination of a long and hard struggle the people of this country have waged for an undisruptable democracy and rule of law. It could not be possible without the crisis that we currently face. In that sense, it is a crisis we had to have.