The May 7 order of the Supreme Court rules on the forum and the parameters for the legal debate to be held by the lawyers of two contending parties, the Federation and the Chief Justice of Pakistan(CJP) Justice Iftikhar Chaudary, on the Constitutionality of the presidential reference and of the other Executive decisions linked to the reference. The forum will be the full Court of the Supreme Court barring those judges who for reasons of legality and propriety will not be included in it.
The parameters, as indicated by the admissibility of the CJP’s petition, going beyond the charges laid out in the reference against the CJP will include the Constitutionality of the overall modus operandi of filing the reference bringing in essentially the broader questions of exercise of State power, individual conduct and intent. The events that appear to have preceded the filing of the presidential reference which include the multiple and often conflicting accounts of the events of March 9, the role played by men who in concealed ways wield unaccountable State power, will all likely be now raised in the Court proceedings. It is in the fairness and fitness of both the matters and the manners of Pakistani State power that the case of the presidential reference examines in Constitutional light the functioning of men and of institutions that deeply influence the fortunes of this nation.
Significantly this order will likely signal the culmination the two month long street movement that was prompted by the filing March 9. On the question of the political nature of the lawyers movement, the role of the media and on the CJP’s conduct unbecoming and the media becoming a party some issues need to be pointed out.
In a highly politicized environment the media did still give all sides of the story. Mildly put the government’s story legally, politically, morally and logically was an unattractive one. The public is a discerning public. Media could not have changed the nature of the government story. Meanwhile as citizens media persons are not impervious to the issues at hand, so also an indirect party to the CJP issue. They had preferences but did not abandon their mandate to tell the whole story.
The CJP has been political. In Lahore his speech was political. His decision to travel by road to Lahore was political. In Lahore he thanked those supporting him but he did not say I am ready to facer all charges against me and that no one must be above accountability. But if the CJP has been political so has the country’s army chief been. Its difficult to knock out the CJP on that point. But then if the battle is against unconstitutional moves maybe its not wise to fight it through unconstitutional moves.
The contribution of the CJP to the struggle for rule of law has been phenomenal. No one can take that away from him. But maybe after his case is over he should bow down as one who successfully mobilized the cynical and indifferent Pakistanis and with solid result.
In the post 9 developments there has been a simultaneous process was at work- peoples power which helped strengthened institutional power thereby rule of law is being established on the backs of a mobilized public led by the lawyer community. The clinical and the purist argument of if the case was made political or not will not hold. Politics, legality and Constitutionalism were at work simultaneously. Pakistan is in a genuinely evolving stage. We have entered a phase of serious politics and serious institution building. It’s a new model of State building. It is neither the ‘danda’ nor the nor the external factor, nor the commercial class but infact the disgust factor prompted by the deprivation not material deprivation but of rule of law of justice, that has thrown up this new model of public mobilization.
Fortunately now the risk of the reference becoming a political football in Pakistan’s political arena has ended. The fear that in the post-reference political battle between the opposition and the government the original objective of the independence of the Supreme Court would be lost is no longer there. The talk of imposition of an Emergency of ouster of general Parvez Musharraf will now abate. What will remain alive through the proceedings will be the only legitimate and indeed the core issue, that has emerged from the presidential reference against the CJP, is that of rule of law and the independence of the judiciary. Power games maybe exposed as will exercise of Executive and State authority , buta s sub-themes only
Rule of law and politics are two separate though related elements. Rule of law as laid out in the Constitution provides the context for politics for legitimate political battling. Hence with the Supreme Court as the apex body, the guardian of the Constitution has to remain above politics, above partisanship and beyond reproach.
This is Pakistan’s contribution to global study of power politics, State and society. At a dizzying speed within a span of 48 hours the hundreds of thousands strong struggle for the independence of the Supreme Court and for the rule of law moved passionately and resolutely through the 260 kilometer stretch of the Grand Truck Road and has culminated at the doors of the Supreme Court. With what greater sense, sophistication and discipline can a movement achieve its goals.
Perhaps never before in recent history have so many been mobilized to give moral muscle to an institution whose own moral and professional muscle has sagged under the pressure of unaccountable exercise of State power. Unlike the common motive of wanting to support a political leader or oust an incumbent, in Pakistan the lawyer-led street movement emerged to support rule of law and supremacy of the Constitution in Pakistan.
The sea of support for the CJP testifies peoples’ commitment to the justice and fairplay. This support is the raw material so readily available to construct a society built on law.
From the story of the endless compromises emerges yet another bout of frenzied public energy saying no to injustice, no to unfair ways. They followed a man of who, in a context of all around compromises, was not at all beyond reproach. Yet the CJP’s defiance interfaced with irrational and crude State power won the day- won peoples’ hearts and minds too.
Pakistan witnessed a unique movement, where the public uprising gave muscle power to the judicairy which has been trampled by muscle power, civil and military as well as by the weakness of the judges itself. The government’s complain about making this into a political issue is a weak one. See its own politics., its lawyers lunching with the Supreme Court judges, its ruling party taking out a procession and organising more.
This must now go down in the annals of political practice and theory as the Pakistan Model of nation-building and State building. This is a first crucial step towards constructing State in line with the Quaid authored original script for what Pakistan as a State was meant to be.
The baton for the continued struggle for the rule of law and for Constitutional supremacy has been passed on to the men in black robes. These men sitting in the apex constitutional body will have the last word on how, in practice the Constitution- approved Executive and State power in Pakistan will be exercised. While the direct parties to the case, Pakistan’s Executive, State institutions and the CJP will deploy all the means available to them within and outside the Courts to win the case and while the opposition politicians will attempt to further their own struggle against Musharraf for power the media will fearlessly and intensely dissect all the reference story as it unfolds inside and outside of the Courts.
But with regard to all the pressures of bouquets and brick-bats emanating from all these forces, the judges of the Supreme Court have to go strictly by the letter of the law and by their own conscience and competence as they interpret the law in a case with minimal precedents. Now the challenge is of upholding rule of law and the judiciary has to perform the task, impervious to the outside world and indeed to Pakistan’s electoral political battles. Those will be fought elsewhere and by different players. Undoubtedly the Supreme Court’s decision will be a major contribution towards the straightening of the ways of the State and the Executive as well as setting right the context for genuine democracy and Constitutional rule in Pakistan.