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Supreme Court Redefining Power Structures


By Imtiaz Gul

 Weekly Pulse,Nov 09, 2012


Did the Oct 12 Supreme Court ruling on Balochistan spring any surprises? What is new in terms of facts on ground, and does it help the province break out of the clutches of Nawabs, Sardars and Mirs on the one hand and the Military establishment on the other? And are certain Supreme Court’s rulings in areas that are considered the exclusive domain of the executive unusual in a country going through unprecedented institutional realignments? Or should we look at the SC interventions as a measured correction of the balance of power that had once tilted heavily in favour of the mighty military, the political ruling elite and their proponents in the media and bureaucracy? 

Before taking a position on these questions, let us see how different stake-holders i.e. the President, the Chief Justice and the Army Chief positioned themselves in an environment fueled by the Supreme Court ruling on Balochistan, followed by President Asif Zardari’s address to a SAARC parliamentary meeting, and the latest media censure of retired generals for their past sins. 

In his address to the SAARC parliamentarians, President Zardari had, in veiled references to the Supreme Court and the Military, spoken of an ongoing assault on the parliament “from certain quarters”, but then played it down as “teething troubles of a genuine democratic transition and dying kicks of the old order.” It resonated the typical invective that Zardari and his party often invoke to equate the Supreme Court’s insistence on accountability of NRO beneficiaries with an attack on democracy. 

Then came the warning shot by the Chief of Army Staff General Ashfaq Parvez Kayani on November 5; speaking to a group of officers at the GHQ, Gen Kayani said no individual or institution had the monopoly to decide what was right or wrong in defining the ultimate national interest.

“All systems in Pakistan appear to be in a haste to achieve something…. Let us take a pause and examine the two fundamental questions: One, are we promoting the rule of law and the Constitution; and Two, are we strengthening or weakening the institutions,” the general asked to the context of the media censure of retired generals in the aftermath of the Supreme Court ruling in the Asghar Khan case. 

The same day, chief justice came out with his thoughts on the national interest and the need for establishing and respecting rule of law. 

“Gone are the days when stability and security of the country was defined in terms of the number of missiles and tanks as a manifestation of hard power available at the disposal of the state,” the chief justice said while speaking to a delegation of the 97th National Management Course, National School of Public Policy and National Management College also merit critical consideration. 

Clearly, the Chief Justice drew on the example of the former Soviet Union which disintegrated in the face of political pressures despite possessing tens of thousands of nuclear warheads, tanks, fighter aircraft, and what not. 

Also, his speech not only focused more on the importance of constitutionalism and its criticality in the socio-economic development, but also underscored the realignment of political powers. 

Justice Chaudhry regretted that weak administration and failure of implementation framework was writ large everywhere. “There seems to be no cohesive efforts in terms of a national framework wherein the mega issues have been tackled in an appropriate manner.” Heavy responsibility lay upon the Supreme Court judges for being the guardian and protector of the Constitution to uphold the canons of constitution’s predominance and its supremacy over all other institutions and authorities. 

“The composition, powers and jurisdiction of the Supreme Court are set out by the Constitution itself and the court exercises original, appellate, review and advisory jurisdictions and its decisions are binding on all other courts of Pakistan,” the CJ argued, in what appeared to be a snub to all those – politicians, media and the military – who often take potshots at the Apex Court for alleged “judicial activism aimed at drawing populist appeal.” 

What underlies the swipes that politicians, generals, and sections of the media are taking at the Supreme Court? Why is this ruling elite upset over the Supreme Court conduct? No doubt, in any functional democracy, some of its rulings would qualify as transgression of mandate and ingress in to the executives prerogatives, yet Pakistan in 2012 offers no normal transition. 

A cursory and dispassionate look in view of the universally acknowledged democratic principles suggests that the Supreme Court – however controversial some of its acts may be construed – is essentially attacking the status quo; a situation that heavily favours the Privileged Ones – a miniscule minority in a nation of almost 200 million. Ironically, the bulk of Pakistanis continue to suffer all sorts of mis-governance and socio-economic injustices. That is why the controversial National Reconciliation Ordinance (NRO), which the Supreme Court had struck down as discriminatory and in violation of fundamental rights, constitutes the core of Court’s enquiry into discriminatory legislation or presidential decrees; why should there be two laws for the people of the same country, and why must the already privileged ruling elite be bestowed with more privileges to the disadvantage of those who vote their representatives into positions of power but themselves struggle to survive. 

The ruling elite is crossed with the senior judiciary precisely for this reason. One hopes that all those who tirelessly campaign for rule of law, equality and fundamental democratic values, would stand by the court in its quest for abolishing the culture of privileges. No doubt, the Supreme Court has emerged as a new power structure along with the parliament and the military.

Imtiaz Gul is the Executive Director of the independent Centre for Research and Security Studies, and the author of the forthcoming book Osama: Pakistan Before and After, Roli Books, India

Email: imtiaz@crss.pk