Justice's Turn

The Supreme Court of Pakistan, finally realizing that the political landscape has shifted away from Musharraf, reinstated CJ Iftikhar Muhammad Chaudhry and nullified the reference filed against him by Musharraf.

This is perhaps one of the pivotal rulings in the turbulent history of this nation. Pakistan, since 1947, has underwent long duration of military rule. From the first military commander of the nation Ayub Khan [1958 - 1969] to Zia ul Haq [1977 - 1988] to Pervez Musharraf [1999 - ], these warrior-kings have all made one fundamental claim to their public: that their particular act of suspension of democracy in Pakistan was ultimately constitutional and, hence, for the benefit of the nation. And, in making this claim, they have always had the support of Pakistan's Supreme Court - a support which was crucial in providing them the necessary legitimation for power. This rejection of Musharraf is all the more dramatic since it comes after a long history of judiciary's involvement in the dismissal of democratic institutions. I had posted earlier about framing the Lal Masjid crisis in somewhat broader context. In a similar vein, here are some things that should be kept in mind as we try to predict how the dice will roll for our embattled General.

It took nine years after independence, in 1956, for the Constitutional Assembly to come up with the first constitution for Pakistan. That document survived a mere two years - as General Ayub Khan set it aside for Martial Law in 1958. He shaped another constitution in 1962 - with the President having absolute authority over every thing, of course. That constitution was, again, suspended in 1969. The secession of East Pakistan and the election of the populist Zulfiqar Ali Bhutto in 1971 was cause enough to take yet another stab at writing a constitution. The result, unveiled in 1973, was accepted by all the political parties and remains in effect to this day. That is, if you consider the following checkered list to mean 'in effect': suspended 5 July 1977, restored with amendments 30 December 1985; suspended 15 October 1999, restored in stages in 2002; amended 31 December 2003. Throughout the 34 years of existence, this Constitution has often become the doodle-pad for the military ruler - Zia ul Haq issued a dozen or so Presidential Ordinances which were grafted as amendments to the constitution in 1985 and stamped by the Supreme Court. One of the most pernicious of these Presidential Ordinances cemented the power of the Executive to dismantle the legislative branch within the Constitution. The civilian goverments of Benazir Bhutto and Nawaz Sharif became painful hostages to that Ordinance.

In this history, the role of the Supreme Court is a particularly sordid one. In 1954, when Governor General Ghulam Muhammad dissolved the first Constituent Assembly, an appeal was made to the Supreme Court, asking it to rule on the legitimacy of such an action. The Chief Justice of Supreme Court at the time, Mohammad Munir, sided with the Governor General in his ruling calling it "the doctrine of necessity". Four years later, in October 1958, when President Iskander Mirza killed off the 1956 Constitution and declared Martial Law with General Ayub Khan as the Martial Law Administrator, the Assembly again appealed to the Supreme Court. Once again, the case of State vs Dosso, legitimized the coup. General Ayub Khan's very next step was to exile the President and the template was fixed for futures to come.

The Supreme Court, having climbed in bed with the military, had no choice now but to tuck in and get cozy. In 1977, it unanimously upheld Martial Law under General Zia ul Haq. In 1981, when Zia instituted the Provisional Constitutional Order and asked all Justices to re-take their oaths - the majority did. Those who refused were fired. This largely ensured future accommodation of any wishes of the Chief Military Officer of the country. In 1988, the Court rejected all challenges and upheld the 1988 dissolution of the National Assembly by General Zia. In 2000, Musharraf stuck to the playbook by sacking any Supreme Court Judge that refused to take their oaths to his regime.

The basis of this symbiotic relationship between The General and the Court lie in the structure of power and influence in Pakistani society. The tiers in this pyramid are the Military, which is the largest employer, the largest landholder and has had the longest duration in power, the civil bureaucracy, which traces back to the Raj (though much weakened during Musharraf's tenure), and the largely land-owning/industrial elite [who often provide the political players]. Functioning between these tiers are functional classes like the lawyers who have parlayed their unique access to military, civil and landed elite into their necessary role as brokers. The Court is apex of such brokerage. It has relied especially on the hagiography of the Constitution to bolster its power even as it sides with the Generals in almost every instance. The Generals, eager for the legitimation, have filled the Supreme Court with their appointees and trumpeted to the public that the Court is the last bastion of truly apolitical and patriotic actors in Pakistan - who have validated their rule. See how easy is this three card monte?

So, what changed with Chief Justice Iftikhar Muhammad Chaudhry? By most accounts, the cause for his dismissal was that he had decided to hear petitions into government scandals - especially about citizens missing after their encounters with ISI and other intelligence services. The first response from the State to this alarming development was the circulation of a rather dubious letter accusing Iftikhar Chaudhry of corruption, cronyism, and abuse of public trust. After some heat was generated from the letter, Musharraf stepped in and declared the CJ to be non-functional and removed from office. And, going by the history of the country, there things would have rested. Except they didn't.

Iftikhar Chaudhry became a public hero. Hundreds of thousands of citizens thronged the streets of Lahore and Islamabad to see him and hear him. The call for Democracy went from being mere abstraction to a full-throated roar in the streets. The middle class that had traditionally sided with Musharraf broke away.

I find it hard to imagine how The General will survive all this. CJ Chaudhry back at the bench will surely pick up where he left off - hearing cases about the disappeared. Musharraf has lost all credibility and legitimacy since Feb/March. The Lal Masjid operation provided only temporary relief.

In the meanwhile, human bombs continue to blast away.