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.

Southasia - - COVER STORY - By Asad Rahim Khan

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.

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