The standards the Supreme Court is setting for others, shouldn’t it be applying some of them to itself?

The political landscape is undergoing a shift, with some of the rules of engagement changing. Consequently, it is no longer true to say that the president, the prime minister and the army chief constitute Pakistan’s ruling troika.
President, prime minister and parliament, collectively, now find themselves reduced to the position of one part of this trinity, signifying a diminution in the authority of both government and parliament.
The space thus vacated is being filled increasingly by a robust and hyperactive Supreme Court (SC), now widely seen as the second member of this troika. It is taking up matters, and exercising its suo moto jurisdiction, in an ever-expanding variety of fields, causing unease in the halls of government.
It is a measure of the government’s diffidence, its exceptional lack of self-confidence, that even where it could have stood its ground — as in the matter of Justice Ramday’s extension and the desired elevation of Lahore High Court chief justice Muhammad Sharif to the SC — it backed down at the last minute, embracing discretion over valour. But with the SC in full throttle regarding its suo moto interventions, the government can be forgiven for wondering whether it was right to make such a virtue of surrender.
The army chief is the one constant in this sea of flux, his authority not only undiminished but enhanced: firstly, by the weakness of the federal government; and, secondly, by the army’s operations in Swat and South Waziristan. Small wonder that if the government is diffident, General Headquarters is riding a wave of triumphalism, the demoralisation of the Musharraf years a distant memory. As any student of Pakistani history knows, a growing imbalance between the military and political arms is not a good thing. It is the ground which nurtures Bonapartism.
To either side of this troika is a chorus consisting of the media. Just as a newly-empowered judiciary is still trying to get its paces right, a newly-empowered media is still in the process of finding the right note for itself. On the whole it is doing a splendid job, but elements in it seem little better than evangelists out on a self-proclaimed mission to reform the universe.
The SC sometimes gives the impression of taking its cue from these reformers. Time was when governments would get sleepless nights from real or imagined intrigues emanating from the GHQ. Today the danger to government is less from that quarter than from the holy marriage between media gladiators and judicial activism.
An active judiciary on the side of the people is something we have never had before. Now that we have one, this is something to celebrate. For too long generals and judges have collaborated to undo democracy. We need a new collaboration between democrats and judges to strengthen democracy. Sadly, this is not happening because democracy is failing to settle down, people are angry because of power cuts and food inflation, and many of the steps the higher judiciary is taking are contributing to this state of uncertainty.
The SC is doing everything in good faith. There shouldn’t be any doubts on this score. But, unwittingly for the most part, its hyper-activism, the tendency it has shown to stray into fields which, strictly speaking, lie not in the judicial domain, are serving to distract the attention of the political government.
To be sure, governance is not what it should be. There is too much corruption in its territory, too much incompetence, too large a body of ministers not yoked to a common purpose. It doesn’t help to have a president who has a huge image problem. It doesn’t help to have a prime minister who is as much a product of accident as the president. But the government’s plight is being made worse by the Molotov cocktails, so to speak, coming from the SC’s direction.
The SC has done much good and its activism serves to keep senior officials on their toes. But not all its interventions have had happy endings. The Lahore High Court intervened in the matter of the pricing of sugar and we immediately had a sugar crisis on our hands. The SC looked into the question of petroleum pricing but nothing was settled to the public’s advantage. Clearly, there are things the judiciary just cannot fix.
It is a good thing the SC is insisting on transparency in the LNG issue. Its judgment in the civil servants’ seniority case should serve as a salutary reminder to the government that there can be no such thing as absolute and unchecked prime ministerial discretion when it comes to the promotion of civil servants.
But the question arises that if these are the standards the SC is setting for others, shouldn’t it be applying some of them to itself? If the executive authority is not to exercise blind discretion in the promotion of senior civil servants, should the chief justice of Pakistan have absolute discretion in the selection and appointment of high court and Supreme Court judges? What is then so wrong with the 18th Amendment which spreads responsibility for judicial appointments, virtually eliminating governmental influence and only tempering to some extent the discretion of the chief justice?
It is not a little strange, however, that those in the forefront of the petitions in the SC challenging this particular provision of the 18th Amendment can be questioned about their own conduct in the recent past. Qazi Anwar, the president of the SC Bar Association, and senior lawyer Akram Sheikh, who are among the leading petitioners, felt no qualms about appearing before Chief Justice Dogar. They are now judicial purists of the highest order. But does it never cross their minds that only who have not sinned should cast the first stone?
Is it also not strange that those in the forefront of the lawyers’ movement, whose leadership indeed kept the movement on the right path — Munir Malik, Aitzaz Ahsan, fiery Ali Ahmed Kurd, Tariq Mahmood — are either quiet these days or in private nurse the gravest suspicions about the moves to take parts of the 18th Amendment to the SC?
If Dogar is to be considered the touchstone of judicial evil, there should be some consistency in reckoning the guilt of those who had anything to do with him. As already mentioned, those who attended his court and appeared before it are now the leading defenders of judicial independence. The Nov 3 judges who went along with Dogar are in the wilderness, where they deserve to be. But one or two are not.
All the judges elevated to various high courts by Dogar were dismissed by a stroke of the judicial pen soon after Chief Justice Iftikhar Chaudhry’s rightful restoration. But at least 10 of the 17 present SC judges took oath under the maligned Dogar. It takes some effort to reconcile oneself to this idea, especially given the SC’s zealousness in so many things these days. So much for consistency and double standards.
In the 18th Amendment parliament has undone the validation conferred on Musharraf’s coup by the 17th Amendment. But parliament has shown grace by giving protection to the judges who swore fealty at the altar of Musharraf’s PCO and then, in the Zafar Ali Shah case, endorsed Musharraf’s coup and even conferred on him the right to amend the Constitution. Included amongst this number was My Lord the Chief Justice. No one’s past is perfect. But the least an imperfect past should be able to do is inculcate a measure of tolerance.
It is not only political and military power which can go to one’s head and lead to that common frailty of humankind: overreaching oneself. It applies to all forms of power, including judicial power, not that this admonition in any way is applicable to the present holders of high judicial office. Far be it from me even to suggest it. But perhaps it is useful to keep this caveat in mind as we go about pursuing the elusive goal of political stability and try to figure out ways to ease the plight of our sorely-tried people.

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