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Pakistan is again going through a
crisis. But this time for optimists like me the instability is
dynamic. It is dynamic because this kind of struggle between a
civilian government and the judiciary can also nudge the country
towards a real democracy. In this case the fight is between a
principled chief justice, Iftikhar Chaudhry, who is trying to
establish the supremacy of the judiciary in the country, and a
corrupt civilian government that came to power, ironically by
supporting the independence of the same judiciary.
The Chief Justice is asserting the judiciary's supremacy through a
kind of judicial activism that is becoming very common in several
of today's democratic countries. But the problem is Pakistan is
still a fledgling democracy which is not ready for this kind of
judicial activism.
Since 2009, Pakistan's Supreme Court has issued numerous rulings
that have propelled them into areas traditionally dominated by the
government in Pakistan. The court has also dictated the price of
petrol and sugar, and supported the rights of transsexuals.
Not only that, this judicial activism, very new for Pakistan, has
also prompted the court to intervene in a fight between the
civilian government and the army over allegations that government
officials sought US help in averting what they thought could have
been a military coup.
It all began some four years ago when the chief justice showed his
readiness to hear the petitions filed by the families of a number
of Pakistanis who went missing during a crackdown on Al Qaeda
militants at the insistence of the US. Then military president
Pervez Musharraf was so worried about the possible exposure about
the alleged missing Pakistanis that he fired the chief justice,
allegedly for agreeing to hear the families' petitions. But the
military leader forgot that the large number of TV channels he had
helped in creating, could become his own nemesis by projecting his
bad image. At the end of the day, he had to resign and the chief
justice was reinstated.
So now the civilian government leaders, who helped in the
reinstatement of the chief justice, believe he is forgetting the
favour and stepping out of his limits. But the chief justice says
his court has always worked within its limits laid down on the
country's constitution.
He told a gathering in Karachi that the country's courts have
always played their part within the parameters of constitutional
domain. The responsibility of judiciary, he said, is not to play
the role of an opposition to legislature or the executive. But the
judiciary has to exercise its power of judicial review in the
cases of "unauthorized, illegal or unconstitutional actions".
The chief justice said Pakistan is not the only country where the
judiciary is having difficulty in playing its proper role.
Corruption, he said, is hindering fair dispensation of justice in
many developed as well as underdeveloped countries of the world.
He acknowledged it will not be easy, especially in a developing
country like Pakistan where the judiciary has been trampled upon
again and again. And he rightly cautioned that there is "no
complete and instant cure" for this problem.
What he did not say was that to achieve a proper role for
Pakistan's judiciary, the cornerstone of any democracy, the
country would need such struggles. Dynamic struggles where the
government will try to limit the judiciary and the judiciary will
try to protect its supremacy under the constitution. The struggles
are common in almost every new democracy until it blossoms into an
established one.
And the most heartening aspect of this crisis is that today in
Pakistan the army rule is not being seen as a solution, but a new
election is. And that, for me, means that Pakistan, knowingly or
unknowingly, is slowly drifting towards becoming some kind of a
democracy. Of course, it will not be easy. But it is possible,
provided such dynamic struggles among the essential elements of a
democracy continue without any interference from the military.
Ravi M. Khanna is a longtime South Asia observer. He
has also headed the South Asia Desk in the Voice of America
Newsroom in Washington and published a book called "TV News
Writing Made Easy for Newcomers". He can be reached at
ravithenewsmanonline.com
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