“There is great disorder under heaven … the situation is excellent”
— Mao Zedong
THE narrative of the alleged contempt case is simple. The supreme executive (the prime minister) has been charged by the Supreme Court for violating an SC judgment which is a violation of the supreme law (the constitution).
Therefore, the only legal question left now is whether or not this disobedience of an SC judgment by the prime minister amounts to a technical legal definition of contempt. Or, does the prime minister have a legal defence or legal excuse for disobeying an SC judgment?
Since this matter is pending before the SC, let us leave this technical legal question of contempt to the honourable judges of the honourable Supreme Court. Instead, let us address the related non-legal questions.
Firstly, what are the political/institutional reasons behind the prime minister’s refusal to write a simple letter? Secondly, what are the institutional reasons behind the SC’s insistence on implementing its judgment irrespective of the political consequences?
In the public discourse, the prime minister’s reluctance to write the letter is either explained away by the ‘mad school of thought’ as another example of the incompetence, bordering on madness, of the PPP government to govern. Or by the ‘bad school of thought’ as a mala fide attempt to protect Zardari’s alleged money. Or even by the ‘political strategist school of thought’ as part of an elaborate political strategy to initially drag on these contempt proceedings, and if everything fails, to embrace legal shahadat.
As for the judiciary, the opinion is divided. On the one hand, the contempt proceedings against the prime minister are seen as a catalyst for the ‘rule of law revolution’. On the other hand, these contempt proceedings are seen as just another example of the judiciary’s alleged anti-democratic posture rooted in judicial history.
But is this conflict over alleged contempt really a conflict in which either the politicians or judiciary can be blamed? Is this not a conflict between two different visions of democracy and constitutionalism in Pakistan? Is this not a part of the unresolved post-2007 democratic transition battle between the political model and the law model?
Post July 20, 2007, a ‘new’ Supreme Court was born. This rupture or ‘newness’ gave birth to the law model which had two distinct aspects. Firstly, the Supreme Court proposed that the transition to democracy should take place through legal battles.
In short, political struggles were legalised and judicialised.
Secondly, the Supreme Court proposed the solution of social, economic and political issues through the judicial process i.e. the judicialisation of state and societal issues and preference for laws and rules over political consent and compromise in solving problems.
The prime minister’s defiance of the NRO judgment is not merely about a single judgment; it questions the very validity of the law model as the NRO issue defines the political/consent model of democratic transition
Moreover, the defiance of the NRO judgment challenges judicial power in two fundamental ways.
Firstly, the prime minister’s public defiance of an SC judgment strikes at the heart of judicial power. It reminds the judiciary about its institutional inability to implement its own orders and its dependence on the executive, thus creating a perception of judicial impotence.
Secondly, judicial power has become dependent on public legitimacy and as a consequence, judicial power has become linked with media power. Thus, the socially constructed and media-driven NRO case has caused the latter to become a ‘permanent’
feature of judicial proceedings.
The prime minister’s defiance of the NRO judgment also symbolises a political fight-back against the perceived dominance and preference of the law model over the political model.
The prime minister has taken this stand on the NRO judgment because the writing of the letter is perceived as a threat to one of the foundations of political power i.e. the political leadership of the PPP, the threat to which is viewed as a direct attack on the
In short, the political elite will not allow the future of its leadership to be determined by legal rationality as opposed to the political rationality of elections, consent and compromise.
But more importantly, this political fight-back is a desperate attempt to stem the monopoly of the judiciary on constitutional interpretation. Something which Thomas Jefferson and Nehru had realised earlier on, the Pakistani political elite has realised
only now: the ‘sacred words’ of the constitution enacted and authored by the politicians themselves have become intrinsically dependent on the constructed ‘sacred interpretation’ of the same constitution by the Supreme Court.
As such there is no ‘meaning’ to the constitution independent of judicial interpretation; in fact the ‘meaning’ assigned by politicians to the constitution becomes secondary. For example, there is no ‘clear and unambiguous meaning’ of presidential
immunity, because no meaning of Article 248 is accessible without interpretation, the latter being the monopoly of the judiciary.
When the prime minister takes the defence that implementation of the NRO judgment will be a violation of Article 248 of the constitution, what he is really saying is that his political interpretation of the constitution is valid and equal to the Supreme
Court’s judicial interpretation of the constitution. Therefore, the prime minister’s attempt to become an equal interpreter of the constitution is the ultimate challenge to the law model.
But why should the politicians or the judiciary give up their respective visions and models?
Constitutional conflict is the engine of constitutional development and what the current conflict requires is not a solution or compromise by either party but merely an avoidance of constitutional breakdown. Constitutional breakdown can be avoided
not by words in the constitution or good intentions but by redefining relationships through power struggles albeit structured by acts of statesmanship.
During the last four years of political democracy and judicial activism, the political and judicial elite’s record of avoiding constitutional breakdown shows that we have a reasonable reservoir of political and judicial statesmanship in Pakistan.
Therefore, let us not despair but move forward with cautious optimism.
The writer is a lawyer.