Looking at the dynamics of the standoff
Nobody was surprised when, on August 3, 2012, the Supreme Court of Pakistan declared the new contempt of court law as unconstitutional. Such a judgment was expected in view of the comments the judges in the course of the court proceedings. The Chief Justice had categorically said in his speeches outside the court that he did not recognize the principle of supremacy of the parliament and the Supreme Court had all power to declare any law or action of the government as illegal if it conflicted with the provisions of the constitution as interpreted by the judges.
It is understandable that the Supreme Court has turned down the new contempt of court law because this law negated the Supreme Court’s current effort to establish its commanding role in the political system. In the presence of this contempt of court law, the Supreme Court could not take any action against the new prime minister or any other official with reference to performance of official duties.
Now, as the contempt of court law is knocked out, the stage is set for the Supreme Court to disqualify the second and the current prime minister for not writing a letter to the Swiss authorities for reopening of money laundering cases against the sitting President Asif Ali Zardari.
If the directing principle being trumpeted by the pro-current judicial activism is that nobody can be immune from contempt of court, there may be another crisis in the offing. The Lahore High Court has already issued a notice to President Asif Ali Zardari to comply with its order of not combing the office of President with the party leadership. If President Zardari ignores this, will the Lahore High Court issue him a contempt notice, by passing the presidential immunity given in the constitution in the tradition of the Supreme Court.
It would be unfortunate if the current prime minister is also disqualified and a contempt notice is issued to the president. These actions would be an extremely destabilizing development, especially if the PPP-led federal coalition decides to appoint a new prime minister who also refuses to write the letter. Will the Supreme Court then disqualify him?
The politically active circles and lawyers are divided on the expansion of the domain of authority of the Supreme Court under the pretext of judicial activism. One argument is what can be described as the pure and simple view of what is happening. The argument emphasizes the Supreme Court’s recognized power of interpretation of the constitution and that if the prime minister does not respect the courts nobody would do that? The ambiguous principle of equality of all is also emphasized, although absolute equality is not found in any political system.
The other argument in favor of interventionist Supreme Court is based on the partisan interests of political and societal groups. All those opposed to the PPP and its allies support the Supreme Court’s pressure on the federal government. They would not mind if the Supreme Court or the military remove the federal government.
The pure and simple approach would have been relevant if it was a single issue of complying with the Supreme Court order. The prime minister’s disqualification issue is a part of the overall disposition of the Supreme Court to expand its domain of authority after the Chief Justice and other judges were restored by the PPP-led coalition government with reluctance in 2009. It is known to all that had there been no pressure from the opposition and the army chief, the PPP-led federal government might not have restored the Chief Justice.
Since his return to the court the Chief Justice has been consistently using judicial activism to expand the domain of authority of the Supreme Court. The major target of this stride is the PPP-led federal government and its officials. By now, what we are witnessing in Pakistan is an institutional clash between the federal executive and the superior judiciary (the Supreme Court and the provincial High Courts, especially the Punjab High Court). The Supreme Court is exercising some executive power by reprimanding, removing and transferring officials, and giving judgments on prices of some consumer goods. It removed Prime Minister Yousaf Raza Gilani by disqualifying him as the member of the National Assembly. The power of disqualification of a member of parliament is traditionally exercised by the Election Commission of Pakistan.
There is another dimension to the current political situation in Pakistan. We are witnessing another type of power struggle between the elected institutions and non-elected state institutions. In the past, this struggle was between the non-elected military and the elected civilian institutions.
Now, the non-elected Supreme Court is endeavoring to expand its domain at the expense of the elected parliament and the elected executive. Such an effort can strengthen the position of the Supreme Court in the political system but it cannot rectify the ills of the political system or remove the so-called corrupt politicians from the political scene.
As the federal government is engaged in a desperate struggle for survival, it can hardly pay attention to acute internal economic and societal problems and external pressures. The Supreme Court pressure is likely to immobilize the federal government and the problems will fester while Pakistan moves towards an internal collapse.
Independent judiciary is important for democracy but it is not the only condition for the success of democracy. The judiciary should also be viewed as non-partisan and non-political. There is a need of institutional balance in Pakistan and the Supreme Court needs to show restraint to allow the elections to take place in due course.
If the confrontation is not moderated the political initiative will shift to the military. Currently, it is influencing state power management from the side lines but it has the capacity to move in if the confrontation between the Supreme Court and the federal government becomes unmanageable or the Supreme Court provides a legal cover to the military to move in for an “assigned task,” including the removal of the present PPP-led federal government.
All these moves will undermine the already under pressure democracy. The Supreme Court will also experience the loss of power if democracy decays. The military dominated or directed political order is based on the unity of command and does not allow autonomy for any institution, including the judiciary.
The writer is an independent political and defence analyst.