The Chief Justice of Pakistan, Iftikhar Mohammad Chaudhry, has been restored to his erstwhile pristine glory by a unanimous decision of the 13 member supreme court of Pakistan. Whatever they may say, the fact is that neither the government, nor the lawyers and supporters of the CJP, expected such a resounding verdict. Indeed, the government’s intelligence agencies had told it to expect 8-5 in favour while the friends of the CJP thought he would be restored only with some restraining conditions. In the event, the Supreme Court kept its pledge and delivered a truly historic blow for the independence of the judiciary. So where does everyone go from here?
Take the CJP. The truth is that in his previous incarnation, Mr Chaudhry’s histrionics did not endear him to the federal and provincial executives or to senior lawyers and judge-colleagues. But now the perception is that he may be eternally indebted to the bar and bench and irrevocably hostile to the executive. This is unfortunate. If he actually turns out to be partial towards those who stood by him or opposed him, it would be a travesty of justice at the highest level because justice is supposed to be blind. But this “blindness” is not going to come easily. Already, a leading pro-CJP lawyer has thundered that justice cannot be blind and that Justice Chaudhry must help the “go-Musharraf-go” movement get rid of President General Pervez Musharraf. Indeed, political emotions ran so high during the campaign that another leading lawyer threatened to burn the Supreme Court down if it didn’t give a favourable judgment. Therefore Justice Chaudhry will have to tread carefully so that he is not tainted by the brush of favouritism or bias. Equally, if he is inclined to consider himself as an all powerful and unaccountable “chief” rather than a “first among equals”, the judges who stood up for him might become resentful and foment a revolt at the behest of the executive, much like the judges who threw out Chief Justice Sajjad Ali Shah in 1998.
As for General Musharraf, the judgment has weakened him morally and politically. But no heads have rolled to appease the pro-judiciary movement and call it quits. This is unfortunate. The government’s feeble “we accept it” response suggests that it has gone into a desperate huddle and is working out suitable counter-moves to protect its diminishing fortunes. Indeed, the perception in the president’s camp is that, whatever the legal pros and cons of any case, no pro-government decision should be expected from this revamped Supreme Court in its current mood. In other words, apart from having to contend with various anti-executive positions on a number of current public issues, President Musharraf should not expect this Supreme Court to validate his quest for re-election from the current assemblies, or give blanket approval to his proposed caretaker set-ups, or allow him to wear the two top hats of president and army chief at the same time.
Under the circumstances, if General Musharraf doesn’t want to face the prospect of defeat at the altar of the Supreme Court led by Justice Chaudhry on any of these three great issues of the day, his options may be simply stated. He can hold genuinely free and fair elections, hand over power to the elected representatives of the people, forget about being president or army chief, and leave as honourably as possible. Or he can swing the other way and impose a stiff martial law, pack off the assemblies, postpone the elections, suspend the Supreme Court, and face the domestic and international consequences of his action. Is there a third option whereby he can achieve part if not all of his agenda without stepping on the toes of the Supreme Court?
The only way out is via a transparent constitutional route which cannot be challenged effectively in the Court. General Musharraf can make a power-sharing deal with both Maulana Fazal Rehman and Benazir Bhutto – the former is estranged from his Jamaat-e-Islami colleagues just as mush as the latter is distant from the PMLN – whereby they can help amend the constitution so that he can be president and/or army chief for another five years in return for Ms Bhutto being prime minister for a third term and Maulana Fazal reigning supreme in NWFP and Balochistan. Such a deal can be done before the general elections so that a constitutional amendment that cannot be challenged in the Supreme Court can give General Musharraf a degree of reprieve or comfort. Or it can be done after the elections when all the parties know their true worth and can get the best deal for themselves. The problem with the “before elections” deal is that it would partially give General Musharraf what he wants without guaranteeing the other two anything because the elections might return an unexpected verdict. The problem with the “after-elections” deal is that it could founder on the rock of intransigence if one or more parties want more than their share of power warranted by the election results. Therefore General Musharraf would probably favour the “before-elections” constitutional deal while the other two would want to do it after the elections.
Clearly, more uncertainty lies ahead.