The possibility of confrontation once again loomed on the horizon as the judiciary and the PPP-led government look likely to lock horns over the posting of Sohail Ahmed in the continuing – and seemingly unending  – saga of the Hajj Scam case. While the case has undoubtedly exacerbated tensions between the judiciary and the government, in the long-run it may prove crucial in the history of democratization and institution-building in Pakistan. It is through clashes between different institutions such as the one that occurred over the posting of Sohail Ahmed, that precedent is established, compromise reached and the boundaries of authority drawn.

While the case is still sub judice, the chronology of events that led up to the relegation of Sohail Ahmed to the post of Officer on Special Duty came “about two hours after he had submitted to the Supreme Court a notification transferring Hussain Asghar, the IG of Gilgit-Baltistan, back to the Federal Investigation Agency in the face of a stern court warning of immediate action against him on contempt of court charge for not complying with its orders”, according to Dawn . After initially demanding Mr. Ahmed’s reinstatement, the court then softened its early position, giving the government a week to appoint Ahmed to any post.  After meeting with allies , the government has announced its compliance with the Supreme Court’s demands, announcing the posting of Sohail Ahmed as Secretary of the Narcotics Control Division. While many looked on with trepidation, fearing renewed clashes between the judiciary and the government, such conflicts play an important role in the processes of institution-building and democratization. With relations between institutions in Pakistan not always strictly conforming to their written guidelines, it is through a process of give-and-take that institutions develop their boundaries with respect to one another, especially after a period of great transition such as movement for the restoration of the Chief Justice.

As protests grew and grew demanding the restoration of the Chief Justice in 2007, they served to reset the relationship between the government and the judiciary, as a new civil society emerged  onto the streets and protested until the new government was forced to concede and reinstate the Chief Justice. In the years following the CJP’s 2009 restoration, the relationship between the judiciary and the government has been murky, with the previous boundaries of authority and review seeming out of synch with current moods in the country.

In this uncertain environment, the only way through which key institutions, including the judiciary, the opposition and the government can develop the new rules by which the game of politics and governance is played is through testing the waters, coming into conflict with other institutions and then reaching a solution to the problem. It is through this process of give-and-take that compromises are reached, deals are brokered and – most crucially – precedent is set. This latest conflict too has helped delineate the working relationship between the government and the judiciary – the government may think twice before transferring an officer leading an investigation , senior bureaucrats may handle conflicting orders from the court and the government differently knowing the fate of Sohail Ahmed.

Crucial to understanding the outcome of the judicial crisis is a look at the interests and stakes of the different actors in this high-stakes courtroom drama and the extent to which their interests were met under the current situation. For the judiciary, this conflict started over the transfer of Hussain Asghar and its need to set a precedent that politics would not be allowed to interfere with ongoing investigations. While this initially meant that Asghar should be reinstated it soon also meant that Sohail Ahmed should not be allowed to be relegated ostensibly for following Supreme Court orders.

The government too was motivated by the issue of defining the boundaries between institutions. Would other institutions of state be allowed to demand the appointment and transfer of senior officials – perhaps against the preferences of the government? After the notification transferring Asghar was issued, it appears without the approval of the Prime Minister, should the official issuing this notice not face repercussions?

Given the high stakes and deep questions involved in the issue, as well as its immediate politicization, ending the impasse would require either compromise or confrontation. Perhaps as a testament to the growing atmosphere of reconciliation and democracy in the country (or maybe other reasons), a compromise was reached with both the Supreme Court  and the government  pulled back from their initial positions and came to an agreement. While there may have been some anxiety and instability in the interim, it’s through this messy, confrontational and unpredictable process that democracy comes about.

The views expressed by this blogger and in the following reader comments do not necessarily reflect the views and policies of the Dawn Media Group.