IFTIKHAR Chaudhry has been restored as the Chief Justice of the Supreme Court, ending a two-year struggle. The lawyers and their allies among the political parties have emerged victorious. However, there is a larger victory that has materialised from this crisis. This is the victory of democracy.
The political forces in the country have proved that they can face off each other and at the same time make the compromises necessary to carry on the democratic process.
To the credit of the government, it did not from the outset use force against the people on the streets. In the end, it graciously relented to end the crisis. Nawaz Sharif, the de facto leader of the opposition, also showed graciousness in his hour of victory. Such majestic accommodation is only possible in a democracy.
The success of the lawyers` movement has forcefully established one crucially important milestone punitive action against the judiciary by the executive is no longer acceptable. However, as the euphoria subsides, there will be a need to analyse the impacts of the movement, the long march and their results. Some concerns can be recorded here.
The movement was carried out in the name of judicial independence. There have been loud claims since the announcement of Mr Chaudhry`s reinstatement that this goal has been achieved. This is misleading. Supremacy of the judiciary cannot be achieved by the persona of an individual. What is required are constitutional provisions whereby the `executive whim factor` in the appointment of judges is eliminated or minimised. This has not happened.
There has not been a single change as far as the institutional structure of the judiciary is concerned. The deficiencies in the constitutional and legal framework of the judiciary that allowed all previous governments to manipulate it in its favour have not been attended to.
The lawyer`s leadership may be basking in the glow of their victory, but their real and lasting contribution to the cause of the judiciary would have been to use the opportunity to focus on those factors that have constrained judicial independence. A principled position, based on unqualified allegiance to the constitution and opposition to the Provisional Constitutional Orders, would have required the lawyers to demand the removal of all judges who had taken oath under PCOs. That, however, would have required dropping the demand for restoration of the chief justice, since like the Supreme Court headed by Mr Dogar, the incumbent chief justice took oath under a Musharraf-promulgated PCO, albeit at a much earlier date.
Iftikhar Chaudhry`s reinstatement is certainly welcome and of considerable symbolic importance; however his own commitment to the rule of law cannot be exempted from scrutiny. The record shows that in January 2000, he took oath as Supreme Court judge under the Provisional Constitutional Order promulgated in October 1999. Less than five months later, in May 2000, he was one of the 12 Supreme Court judges who validated Gen Musharraf`s military coup. Much later in April 2005, he was one of the five judges who dismissed all petitions challenging Gen Musharraf`s constitutional amendments and ruled that the Legal Framework Order was legal.
Post-November 2007, by opposing the PCO-tainted Dogar court and asking for the restoration of the equally PCO-tainted Chaudhry court, the lawyers` movement lost the moral high ground. Had the lawyers` leadership been truly mindful of the principles of their cause, their demands would have included required constitutional amendments to ensure the independence of the judiciary. This was a historic opportunity of far greater magnitude, but it was unfortunately lost.
To be fair to the lawyers, however, the government side also made no effort to engage the lawyers in any kind of meaningful negotiations. The government failed to understand that the Iftikhar Chaudhry issue was like a festering sore that would be exploited by opponents within and outside parliament. The PML-N did just that. It saw in the lawyers` movement an opportunity to enhance its political relevance through the display of street power, given its geographically limited mandate in parliament. However, the PML-N also virtually hijacked the lawyers` movement. If Aitzaz Ahsan was in the driving seat all through 2007, it was Nawaz Sharif who took his place in 2009.
This is also the reason why no structural issues with respect to the judiciary received any attention. No political party in government or waiting to be in government is expected to be eager to build checks on its exercise of power; its morality-tinged rhetoric notwithstanding. This is not to question the sincerity of either party; however, the imperatives of the business of politics need to be recognised.
Fortunately, the opportunity to make good on lost prospects still exists. The political focus is now likely to shift to the issue of constitutional amendments à la Charter of Democracy. The battle for correcting imbalances in the constitution needs to be treated as more crucial than the one being waged until recently. The lawyers` leadership needs to distance itself from political parties and reassert its moral leadership of the struggle for the rule of law. It needs to draft the amendments necessary to ensure inclusion of cast-iron provisions for the independence of the judiciary and present them for consideration by parliament.
The proposed amendments also need to define the parameters for the judiciary and the limits of its powers, if the prospect of judicial autocracy is to be avoided. Suo moto actions can be fully justified if a violation of law has occurred or if the law is not being enforced or if there are violations of human rights. However, suo moto orders to the Karachi administration to control prices or to improve traffic amounted to ordering the tide to stay back and were clear instances of judicial authority going overboard. And edicts with respect to Lal Masjid/Jamia Hafsa amounted to interference in the domain of executive authority.
The functioning of democracy requires that the three pillars of state are appropriately balanced. Attempting to address executive excesses by over-arming the judiciary will only sow the seeds of a crisis and instability. And Pakistan certainly cannot afford any more instability.
