We often talk of the endgame in Afghanistan but we will have to wait for 2014 to see how this endgame is fully played out by competing interests inside and outside Afghanistan.
However, another endgame is already unfolding in Pakistan. It is a political endgame raising doubts about the future of democracy and creating the spectre of Pakistan becoming a non-functioning state. The growing institutional conflict and the effort of the superior judiciary to stretch its domain of authority at the expense of elected civilian institutions like the parliament and the executive adds a new dangerous dimension to the increasingly conflict-ridden politics in the country.
The superior judiciary, especially the Supreme Court, has adopted a highly activist role since the restoration of the chief justice and other judges in 2009. They may see their role in purely legalistic terms but the widespread consensus in the political circles is that the superior judiciary is stretching its domain at the expense of the elected parliament and the federal executive. One wonders if the courts need to fix sugar price which was not implemented, remove and post officials, and seek legal action against the president and the prime minister. The comments made by the judges during the court proceedings get published in the newspapers that become a part of the on-going political confrontation between the government and the opposition.
Three important facts seem to highlight the current judicial activism. First, it is a well-known fact that the PPP federal government and especially President Asif Ali Zardari were not keen on restoring the current chief justice and few other judges. It was the threat of the long march by the opposition and pressure by the army chief that the chief justice was restored in mid-March 2009. Second, the restored chief justice and other judges adopted judicial activism that often targeted the federal government and some of its key officials. Since 2009, the Supreme Court judges have shown remarkable unanimity of views in judgments. We have seen in the past that sometimes the court gives split judgments, some judges diverging from the main judgment. We now see unanimity among the judges in the cases dealing with the federal government, the prime minister and the president. Third, the opposition activists are filing more petitions against the federal government and its leadership in the High Courts and the Supreme Court than ever before. For them, the courts have become another arena of political contestation.
In any democratic system, the elected institutions enjoy precedence over non-elected state institutions. In their mutual interaction, the state and societal institutions observe restraint and show deference towards one another. If an institution attempts to overwhelm other institutions for any reason, institutional imbalance is the natural consequence which distorts the political process.
In the past, the military overwhelmed civilian institutions and processes with a savior complex. This did not remove the deficiencies in the civilian institutions. Rather the civilian institutions lost the sense of direction. The present day judges may have the noble desire of establishing the rule of law and improve the performance of the executive, the current method of keeping civilian institutions under pressure is not going to help to achieve the objective. If the judiciary uses activism to place a check on elected civilian institution, the judiciary cannot exercise this power as a self-articulated discretion. Judicial activism need to be accompanied by restraint and moderation and it cannot be exercised in a manner that it contributes to political uncertainty and chaos.
The disqualification of Yousaf Raza Gilani and his removal from the office of prime minister will continue to be debated in legal and political circles. It is also well known that there are two conflicting views on the writing of letter by the Government of Pakistan for reopening corruption cases against Pakistan’s sitting president in a foreign country. There may not be any legal and political precedent of the insistence by the highest court in a country to put its own sitting president on trial in another country. The memo case will also involve the presidency.
The matter has become more politically sensitive with the demand of the Supreme Court to the new prime minister to explain his position on this matter by July 12. What adds to the concern about the future of the present day democratic order is that the Lahore High Court has also taken up an issue relating the president. It has asked him to quit his political party office in order to continue as president? This is a question of political morality and should the issues of political morality be settled in courts or the parliament?
Does all this mean that we are now heading towards an institutional clash as the superior judiciary takes up these matters involving the president. Interestingly enough, the support of opposition to the executive-judiciary confrontation is based on the existing political divisions which have become sharper after the removal of the prime minister.
The PML(N), the PTI and the Jamaat-e-Islami and the legal community affiliated with or sympathise of these parties support the Supreme Court in its bid to revive the case against the president. Those supporting the PPP and its allied parties view this as a bid by the superior judiciary to remove them from power. The independent political observers are perturbed that the current political tensions will accentuate when a new round of court cases starts against the new prime minister and the president.
Pakistan is currently facing devastating socio-economic problems with faltering economy, growing internal disorder, sectarian killings, religious extremism and terrorism. These issues cannot be addressed by a court judgment. Similarly, if the executive and judiciary engage in another confrontation, Pakistan is likely to experience administrative paralysis and political anarchy.
Any interim political arrangement dominated by the judiciary and supported by the military may remove the PPP-led federal government but it does not offer a credible solution to the multiple crises of the state and society.
The only practical solution is that the superior judiciary should step back and give a breathing space to the federal government which would make arrangements for early general elections; perhaps before the end of the year. The PML(N) and the PPP-led coalition should agree on a new Chief Election Commissioner and then evolve consensus on caretaker prime minister and chief ministers so that new elections are announced. Any other strategy to resolve Pakistan’s problems will have unmanageable negative consequences.
The writer is an independent political and defence analyst.