Pakistan’s Milestone Judgement

The unanimous decision of the full bench of the Supreme Court ruled ultra vires the removal of the Chief Justice of Pakistan (CJP) as well as the presidential reference filed against him. The reinstatement was unanimous. On the reference there were three dissenting judges who sought the reference be sent to the Supreme Judicial Council. The short judgment also referred to question of the CJP’s accountability and stated that "It has never been anybody’s case before us that the Chief Justice of Pakistan was not accountable. The same issue, therefore, does not require any adjudication…" Hopefully the detailed judgment will comprehensively address the issue of accountability.

In the court room hundreds packed like sardines, had for hours awaited the judgment with bated breath. There was apprehension even among the CJP’s lawyers of a ‘mixed’ judgment. The majority wanted a ‘clean’ judgment –”for the sake of Pakistan, for the sake of national integrity, for justice etc. The list of reasons was long and convincing. The silent consensus was deafeningly loud….. ‘Pakistan is now on road to a genuine democracy…and no one can take that away from us.’ And this time we have earned it through struggle and sincerity.

The lawyers who had turned to the SC for justice in the CJP case were clear that if it wasn’t going to be justice as they understood it, the verdict would not be acceptable. In case of a ‘mixed’ judgment the CJP’s team of lawyers had decided they would not react immediately in the Court room. Instead they would hold a meeting for 10 minutes and then announce their ‘line of action.’ Fortunately the lawyers’ view the majority’s view, the judiciary view and the law of the land all converged on a common note.

The ‘clean judgment ‘came and the Court room erupted with excitement. Teary eyed, feeling ten feel tall all those present couldn’t stop congratulating each other. In a common cause, in a national cause, in an institutional cause, in the peoples’ cause everyone had won. Pakistanis represented from across the entire country were winners. The cause of the joy and excitement was truly unique. It was not for the ouster of a government or for beating India at cricket. In the public mind the Supreme Court’s short judgment was an act of upholding rule of law and Constitutional propriety.

From the refusal of the Chief Justice to resign to the filing of the reference, the State’s high-handed and illegal manner of dealing with the case of the CJP, the lawyers’ non-violent movement, the politicians’ engagement, the media’s interest and the public support, Pakistan witnessed an unprecedented maturing of the Pakistani nation. It was a 134 day struggle, from the CJP’s ouster to his reinstatement. Any out of court settlement would have denied the nation, the State and the judiciary this crucial process which in fact ensured balancing of institutional power and above all strengthened the judiciary which will lead the effort to hold State and executive power accountable.

A movement led by professionals substantively contributed to checkmating the moves of the powerful State institutions. It provided the judiciary the enabling environment to correctly function within the parameters of law. The media aptly and consistently reflected the issues involved in this peaceful struggle.

Indeed, the judgment is the first clear and successful effort to establish the long-absent constitutionally mandated balance of power in the institutions. In accepting the judgment, the government has wisely signaled that it now supports the process of strengthening of institutions, of making corrective moves, of State institutions being held accountable and above all in the complete independence of the judiciary.

There have also been numerous positive fallouts of this definitive strengthening of the institution that ensures credible functioning of a democratic system. Six are noteworthy. One it has boosted the spirits of a nation that was reeling under the shock of daily suicide bombings. Twelve suicide bombings in all the four provinces targeting law enforcement agencies, the civilians, the Chinese and the army in 5 days had left over 200 dead. The Supreme Court judgment lifted the blanket of gloom and doom that descended on the nation. Good things could also happen.

Two, at the Stock market the downward spiral was arrested. A spate of suicide bombings and the apprehension of an impending confrontation between the State and the lawyers had prompted a selling spree. In less than a week foreign investors had pulled out substantive funds. Domestic investors also heavily shed shares. How far the market picks up will depend on other economic indicators. There has been overall slowing down of the economy. Privatization has slowed down. Current account deficit has crossed 7 billion dollar mark.

Three, amicable resolution of a legal problem with major political overtones is now likely to discourage people from viewing the principally security threat of suicide bombers from a politicized lens. So far the almost national anger against the State over the CJP issue was preventing them from appreciating the nature of the threat. Angered, people tended to blame the State for these bombings. Should the threat of suicide bombers persist the government may now find it easier to get psychological and moral support in dealing with the fallout of the threat and the response.

Four, at home and abroad there will now be a realization that despite being caught in the eye of the terrible storms of terrorism and counter-terrorism, the Pakistani resolve to restore genuine democracy is strong and uncompromising. If in the pre-judgment period Pakistan’s path to democracy seemed to be boulder-blocked, it now seems relatively smooth and open. Contesting politicians now know that they can legally contest against a possible ‘non-level playing field’ and the judiciary will weigh heavily on the Election Commission to abide by the Constitutional parameters set for a fair and free elections. The judiciary will respond to the reservations of all the political contestants regarding absence of ‘a level playing field’ for all.

Five, politically General Parvez Musharraf can no longer take anything for granted; neither his re-election by the present Assembly nor his holding two offices – the president and the COAS. Although the president has repeatedly said he will vacate one office in accordance with the Constitutional requirements, he has been equally vehement about being re-elected by the current Assemblies. Significantly for any political arrangement with a political party the President will most likely require legal clearance of such an arrangement. Politicians opposing such a deal will certainly turn to the SC in the hope of a legal audit.

Six, only the constitutionally-mandated State institutions will participate in the holding of the 2007 elections. Functioning under the sharp eye of a morally and professionally resurrected Supreme Court, the ‘invisible hand’ of the agencies maybe greatly diminished. In this immediate post-judgment period the SC will feel obliged to both take suo motto action and also respond to complaints against agencies’ involvement in the political process.

The next key moment in Pakistan’s history is Election 2007. The July 20 judgment augurs only too well for us in Pakistan. Even the government can be partner in this great revival of Pakistan if it chooses to ‘play by rules.’ But for that President Parvez Musharraf will have to make some bold and correct decisions regarding his uniform, his re-election, the current government and the opposition leaders.

Meanwhile, the media in its ‘watch dog’ role is bound to turn its eyes and ears on the functioning of the reinstated CJP of the Supreme Court. The country needs rule of law, a healing touch and mutual co-existence. That alone is the way forward for a nation striving to pull out of the extended fallout of our past and even present blunders.