Pushing the Envelope
Going against the might of the judges was too tall an order for any party, even the PPP. But for the very first time in history the executive thought twice.
In his wonderful book on sharia law, Sadakat Kadri tells us about the Caliph al-Mansur’s legal headaches as far back as the eighth century. Writes Mr. Kadri, ‘Islam simply lacked any settled traditions about how to judge according to the sharia… Many members of the ulama were not only reluctant to pronounce on a co-religionist’s sinfulness; they were manifestly terrified of doing so.’
Mr. Kadri made his point with ‘the story of a North African scholar who was instructed to decide a case according to the sharia by the
governor of the Maghrib. He had to be escorted under armed guard to the mosque, and agreed to hear the litigants only after the governor’s guards tied him up, took him to the roof and threatened to throw him off. Even then, he cried so much that the parties decided it would be better for all concerned if they took their quarrel elsewhere.’
Mr. Kadri thinks that a generation of jurists, having seen brother kill brother in Islam’s civil wars, reacted by outsourcing as much ‘ judgment’ as they could to the Resurrection. Whatever the case, it seems that the judiciary’s role in society was being debated long before General Musharraf’s very, very bad day in 2007. Of the thousands and thousands of state cogs the general could have sent home, he picked the one that wasn't about to budge - Chief Justice Iftikhar Muhammad Chaudhry.
And when the dust cleared, one thing was for certain: no al-Mansurs could fault this judiciary for inaction (one wonders though, whether the old caliphs would have preferred their qazis' tearful restraint instead).
If through rose-tinted glasses, the last six years have shown us two unprecedented achievements - the rise and rise of an ‘independent judiciary’, and the liberal civil rights movement that led to its restoration.
The latter was the lawyers' movement, taken at its highest of course; a sea of black ties scrabbling against the state...with mixed results. Though its core creed, if overly ambitious, was to restore the rule of law, it had to make do with restoring dignity to the lawgiver instead, and then hoping to follow his cue.
And what a cue it was. Suo motus were taken, Swiss letters were written, and a prime minister sent home. And in some aspects, the rule of law bulldozed into areas where once angels feared to tread, moral and military. While 'judicial activism' gave us the targeting of many an Atiqa Odho, it also declared Missing Persons - a phrase straight from Orwell’s 1984 - illegal.
That's why a hundred years from now, history may just throw up this judiciary, irreverent and angry, on the plus side of things.
Not for any of its big acts perhaps: Swiss letters were forced through, but Asif Zardari still made it to the finish line. Yousuf Raza Gilani's dismissal was cheered by few (if mourned by none), and his replacement by Raja Pervaiz Ashraf sent out a businessas-usual vibe for the first time in Pakistan, often twisting and turning when previous PMs were flung out. Nothing came of contempt notices served on Imran and Altaf - though one apologized and one didn't - and the judicial interest that inflamed Memogate achieved little save for Husain Haqqani writing furious books from Boston. Headway was made in the Missing Persons’ case, but the full story is yet to be written.
On paper, the record is patchy. But looking beyond the tally, judicial activism’s greatest legacy is more idea than act: the rights of the citizen. Those rights, screamed the critics, were enforced via overreach; via the judges stepping into economics and politics and any branch of the state that was furthest removed from it. It gave us all manner of People’s Party gents, from Babar Awans in sunglasses to Faisal Raza Abidis breathing hellfire, going toe-to-toe with the bench, before being thrown under a bus by the same party they defended. Going up against the might of the judges, it seemed, was too tall an order for any party, even the People’s.
But it also meant that, for the very first time in history, the executive thought twice. And that’s no small feat for any Pakistani institution to have pulled off.
No doubt the judiciary is 'politicized'. Perhaps the more urgent question should be, is it partisan too? Yes, the bench goes gunning for some parties more gleefully than others, but that’s a crease to be ironed out with time. Judiciaries maturer than ours have fallen prey to taking sides: Bush vs. Gore saw each blue justice pull for Gore (appointed as they were by Willy Clinton himself), only to be outdecided by Reagan and H.W.'s reds. The judiciary eventually will, at best, move beyond the baby biases it built up during the lawyers' movement, and institutionalize. At worst, with the poison pit that is incumbency, it will start hating everyone in office equally - the first step was hauling in Imran Khan, one of the movement's many stars, for contempt.
As for the cherry of depoliticization, the court has begun realizing it need not be political to be populist. Should the average Pakistani grasp that the men in robes are truly impartial, it will strengthen the courts' legitimacy in a land that has ignored it far too long.
It is, in any case, a clear improvement over the yes-men of yore, whose allegiance began the day one stepped into the Aiwan-i-Sadr, and ended the day they stepped out. No doubt there are a million cracks in the current judicial setup. But who in their right mind would prefer any of its predecessors?
That too is part of the never-before-seen-nature of what is happening – PCO after PCO after packed bench, the judges are finally getting their say. And it is tribute to all those dissenters – and there’s not a few going out with a bang in our judicial history – that shouted from the rooftops, that were asked to sign all number of PCOs, rubber-stamp all manner of judgments, chase after all kinds of political opponents, and in the end sided with what was right. This is their bench, before anyone else’s.