The decision by the Supreme Court of Pakistan led by Justice Iftikhar Mohammad Chaudhry to outlaw the Provisional Constitutional Order (PCO) of November 3, 2007, by General Pervez Musharraf has been hailed as “historic”, “principled” and even “revolutionary”. Indeed, some people have gone so far in their praise and expectation to pronounce it as an “end to martial law forever”. But we are inclined to be less sanguine in our judgment. While the decision is certainly primed to set the stage for a more independent judiciary – which is a great and welcome development – the fact is that it is neither historic, nor terribly principled, and far from being revolutionary.
Certainly, the resistance of Mr Chaudhry and the lawyers movement to a military dictator’s errant and arrogant ways was unprecedented and even revolutionary. No judge had ever dared to say no to a general, much less lead a popular and sustained movement against him. So a fulsome salute to Justice Chaudhry is in order. And no movement had lasted so long in support of principles. So the young lawyers are to be commended. But the support of the Pakistan Muslim League (Nawaz) to the cause of the judges and lawyers was politically opportunistic, given its track record against the judiciary. Certainly, the PMLN has been the biggest beneficiary and the PPP the greatest loser in this game of judico-political see-saw. The restored judiciary, as expected, has leaned heavily in favour of the PMLN, first restoring the PMLN to power in Punjab, then enabling the Sharifs to contest elections and finally overthrowing the conviction for hijacking of Mr Nawaz Sharif in 1999. In all these cases, pragmatic politics and not principled law was at stake.
Nor was this particular judgment unexpected or terribly principled. Everything the judges had said and done in court during the hearings pointed the way forward. But Mr Chaudhry’s ruling stops short of asking the government to initiate a case of High Treason against General Musharraf, who is safely ensconced in a flat in London these days. If it had done that, we might have hailed it as a revolutionary step with far reaching deterrence-consequences.
We might also caution against the view that the SC’s decision is a “principled” blow for an independent judiciary. Most people don’t care to remember that Justice Chaudhry and his triumphant colleagues all took oath under General Musharraf’s first PCO in 1999 after the coup and owe their promotions to the dictator. Indeed, Mr Chaudhry was a member of the SC bench which upheld General Musharraf’s bid to be both army chief and president in 2004, a position that Mr Chaudhry as chief justice sought to overturn in 2007 when General Musharraf wanted to contest a second presidential term in uniform, provoking the mini-coup of 2007. It is also circular to argue that the 1999 PCO was endorsed by a parliament based on it, absolving the then SC and Justice Chaudhry of any responsibility. Indeed, if that is the case, then the SC should relinquish its power of judicial review and never challenge any parliamentary law, let alone any constitutional amendment.
Then there is the issue of judicial accountability and the likely political consequences of this judgment. For starters, 106 judges of the High Courts and Supreme Court who were appointed by General Musharraf or by President Asif Zardari before or after the PCO have been, or will be, sacked. This means that Justice Chaudhry will now handpick the entire senior judiciary, warts and all. This is hardly a recipe for judicial balance or accountability. The pendulum will now swing to the other extreme, with Justice Chaudhry hiring and firing judges and even throwing out laws and constitutional amendments made by parliament. Second, if he helps overthrow the 17th constitutional amendment, he will be tilting in favour of Mr Sharif and hurting Mr Zardari. He has also left General Musharraf’s fate in the hands of parliament. This is the height of pragmatism, not principles. By refusing to contend with the army’s high command, including the current army chief, General Ashfaq Kayani, and many corps commanders, in whose name and authority the November 3 PCO was also promulgated by General Musharraf, Justice Chaudhry has proved that discretion, and not deterrence, is the better part of valour. This is just as well, perhaps.
Justice Chaudhry has another four years to go as chief justice. If the judiciary gridlocks the executive or helps the PMLN in hounding Mr Zardari or the PPP out of office, Pakistan will be politically derailed again. Therefore wisdom and restraint and not bravado or self-aggrandizement is the need of the hour.