Can the courts shake off the government’s vice-like grip?

It is to the enduring good luck and bad of this land that we aren’t very competent in what we do. Good luck because — well, imagine if the clown show on display for the last year and a bit had been a bit better at what it had to do.

The hybrid regime could have tried to mop up the remaining political opposition, lock up all dissidents and wrap up any pretence of an independent media. The regime could have by now begun the work of dismantling the rights-based constitutional order and doing all that it deems necessary and appropriate to extending the reach and permanence of the regime. But what we got is a clown show. And that’s precisely our bad luck too because — well, we all have to live with the failures of the regime. Look around. The hurt is very real.

But failure of the regime in its bigger goals — crafting an economy to support a security state and dismantling the rights-based constitutional order — doesn’t mean that significant, and perhaps irreversible, damage is not already being inflicted.

To put it as straightforwardly as these tricky times allow: in pursuit of its goals, the regime has leaned on the other arms of the state and made parts of them complicit. And the stuff with the court is perhaps the most worrying because it’s not at all obvious how the potential damage can be undone. There is right now a battle being waged for the soul of the Supreme Court.

You may have caught snippets of it reported in newspapers in muted terms. Perhaps you’ve seen it discussed more openly on social media or in legal circles. TV has mostly been kept away from it other than, predictably, to tarnish and bully one side. Whether or not the judge survives is important — deeply important — but it is not nearly the whole story. The bigger story is that a few years ago the court made itself all powerful and ever since it has been sucked deeper into the political swamp by other forces.

Rewind to the 1990s, the last time a semi-elected order was being asphyxiated. Back then the troika and the presence of 58(2)(b) made things relatively simple. Back then, when the president and the chief ganged up on the PM, off the PM went. By the time the PM ran to the court to try and save the government, the government was already gone.

That pattern and possibility created an incentive for the civilian government: appoint a favourite as chief justice to try and block the activation of 58(2)(b) when the president and the chief ganged up on the PM.

That in turn created an incentive for the court to build a firewall against government interference: make the appointment of the chief justice automatic, based on seniority until retirement.

Firewall thus built on the civilian side, the court had to wait for a firewall on the non-civilian side, against judges being summarily despatched by a non-civilian. Enter Iftikhar Chaudhry and his quixotic rebellion against Musharraf.

A successful rebellion and some constitutional strengthening via the 18th Amendment resulted in a new firewall on the non-civilian side against interference in the court.

A balance of sorts was achieved between necessary judicial independence, the executive prerogative of the civilian side and the potential for the non-civilian side to interfere.

Fatefully, Chaudhry did not stop there. He set the court on the path to maximal power and minimal external or transparent accountability. Chaudhry wanted to decide who is appointed to the superior judiciary and to do so he opened the door to the court deciding the constitutionality of a constitutional amendment.
Soon enough, a future court ruled that the court really did have the power to decide the constitutionality of a constitutional amendment. Military courts were the immediate result.

So while good ol’ 58(2)(b) could be struck from the Constitution because parliament decided it had to go, now that 62/63 — the qualification/disqualification articles — have been weaponised, will a future court allow them to be tweaked or eliminated?

The other thing Chauhdry did was to unshackle the suo motu powers of the court. On Chaudhry’s watch, suo motu was used in ways so wild and woolly that there was barely any link to the constitutional enforcement of fundamental rights.

Suo motu became whatever a judge wanted it to be.

There is a small irony here: the judge currently under scrutiny is perceived to have got himself in trouble by using his suo motu jurisdiction to probe an infamous protest. It was never obvious what the probe could achieve and, arguably, the probe itself was an example of the too-liberal use of suo motu powers.

All of which to say, the court’s sanctioning and use of maximal powers for itself may have inadvertently caused the court to become an irresistible target for a regime seeking particular outcomes.

A possible solution: the court shedding its suo motu heft and opening itself up to parliamentary or transparent scrutiny.

But then, does anyone here voluntarily give up anything?

Prepare to be sucked deeper into the morass.

By arrangement with Dawn