A defining judicial moment
WAS the prime minister guilty of contempt of court? Shouldn’t the sentence have been stricter? Does the Supreme Court (SC) judgment lead to the immediate removal of the prime minister? Is the judiciary biased against the PPP and democracy?
The above questions are important but the historical significance of the SC judgment convicting Prime Minister Yousuf Raza Gilani for contempt of court lies beyond the present conflict between the PPP government and the SC. It signifies a defining moment in the shifting balance of power between the judiciary and the Pakistani political class as a whole.
“It was a straightforward case for implementation of the judgment of this court on which there could have been no two views,” as Justice Nasir-ul-Mulk rightly observes in the judgment convicting the prime minister.
But should such a “straightforward case for implementation” require over two years of SC proceedings for implementation of the NRO judgment, 21 hearings for the contempt case, a bench of seven SC judges hearing the case, a full-fledged criminal trial for contempt and a 77-page SC judgment, with two separate judgments authored by Justice Nasir-ul-Mulk and Justice Asif Saeed Khan Khosa?
No, would be the answer of most people in Pakistan with the exception of course of the PPP leadership and its lawyers.
In fact, the contempt case was a key conflict between the judiciary and politicians on the constantly increasing judicial power and judicial desire to shape the ideological and democratic agenda. Beyond the constitutional and legal discourse in the SC judgment convicting the prime minister, the judgment provides insights into this three-dimensional conflict pertaining to power, ideology and morality.
Power struggle: “After all, if orders or directions of the highest court of the country are defied by the highest executive of the country then others in the country may also feel tempted to follow the example leading to a collapse or paralysis of administration of justice besides creating an atmosphere wherein judicial authority and verdicts are laughed at and ridiculed,” holds Justice Nasir-ul-Mulk. In short, the SC judgment is about protecting and sustaining judicial power.
Once the prime minister was convicted by an SC bench headed by the soft-spoken Justice Nasir-ul-Mulk, a judicial breakthrough had occurred. The SC’s contempt conviction shows its ability and confidence to challenge the attempt of political classes to control judico-political power.
SC judgments can be reversed but such judicial confidence in judicial power, which comes from convicting the prime minister, is extremely difficult to reverse because such strength and confidence in judicial power over political power has now entered the institutional mindset of the judiciary.
In the last four years of democratic governance, Pakistan has been governed by a de jure political and de facto military elite, neither of whom work within the constitutional framework but operate as sovereigns with extensive independence of action. Their sovereign powers have been interfered with, and checked by the judiciary. But after the prime minister’s conviction by the SC, the judiciary itself has been transformed from merely another independent institution to a sovereign one.
Therefore, three distinct sovereign institutions have emerged in Pakistan leading to the politicisation, militarisation and judicialisation of governance in the country.
Ideology and democracy: One cannot take on the political elite and convict the prime minister simply on the power of the ‘written law’. The power of the ‘written law’ must be backed up by some perceived ‘real power’.
In the past, the ‘real power’ behind judicial power had been the powerful military elite but this is an independent SC which cannot rely on the military elite, which itself poses a danger to judicial power.
It is this perceived ‘real power’, backing ‘written law’, which is provided by Justice Asif Khosa’s judgment by invoking and making references to the ‘people’ holding that “a person defying a judicial verdict in fact defies the will of the people at large … if the cause is constitutional and just then the strength and support for the same is received from the people at large”.
This is the new judicial philosophy of basing judicial legitimacy not only on the written words of constitutional legitimacy but also on public legitimacy and potential public mobilisation.
The implications of this judicial public legitimacy will lead to judicial interference in more and more areas of governance in Pakistan by applying the ‘rule of law’ doctrine as the panacea for all that ails the country.
This is the ideological process of the judicialisation of Pakistan, in which the agenda and directions of democratic development in Pakistan will be extensively supervised and structured by the judiciary. In short, the judiciary has emerged as the gatekeeper of democracy.
Political versus legal morality: The conflict in Pakistan is not only about power, democracy and constitution, it is also about competing moral claims. The claim of political morality is that violations of the law and SC judgments should be ignored for the time being because this political government is fighting more important existential battles i.e. against terrorism, for establishing political and democratic stability and against a powerful military establishment.
This was the crux of the unspoken political argument by Mr Gilani in the contempt case. Whereas the claim of legal morality is that the greatest existential danger to Pakistan is the violation of the constitution as defined by the SC. This moral conflict triggered the moral overtones of Justice Asif Khosa’s judgment.
Like the ideological conflict between the judiciary and politicians about whether the panacea for Pakistan is political compromise or the rule of law, the conflict of political versus legal morality has no definitive right answer. Only political conflict and history will answer these questions.
However, the most important thing is not who wins these legal and political conflicts but how these conflicts are fought. The PPP didn’t physically attack the SC nor did the judiciary go overboard and immediately remove Mr Gilani from office. Such political and judicial statesmanship should give us cautious optimism in Pakistan.
The writer is a lawyer.