The story of how institutional boundaries get overstepped in Pakistan is painfully long and mostly to the detriment of the continued democratic politics in the country. The rule of the law has also had a similarly rough ride in the Islamic republic. In the political imagination of the people of Pakistan, and here we talk only about those who create and consume the contents of the public and private media machines, the two subjects have come to be seen exclusively from each other. The rule of the law and the observing of institutional boundaries have come to be seen so antithetical to each other that one cannot be upheld without letting the other go. They arouse contradictory political passions and change or perpetuate the existing political and ideological divides, depending on the number of votaries among the people that they can muster at a given point in time.
General (retd) Pervez Musharraf trampled the institutional boundaries to take over the reins of the state and the government while still being in his military uniform. However, his initial proclamations to uphold the rule of the law without fear or favour earned him many friends in urban and semi-urban Pakistan before he blew it all away, putting down the book of rules and throwing the legal texts out the window. By the time the end game approached for him, both the opponents of institutional mixing up and the champions of the rule of law had turned against him.
The incumbent government of the Pakistan Peoples Party initially tried to make a virtue of its intentions to put the institution of the parliament at the head of the structure of the Pakistani state, issuing veiled warnings to all other institutions that any infringement of the supremacy of the parliament would be tantamount to putting this structure upside down. It rallied all political powers represented in the parliament to oust Musharraf, put its own men in the presidency and embark on a massive restructuring of the federal structure of the country. But it lost the impetus midway through as President Asif Ali Zardari and Prime Minister Yousuf Raza Gilani, along the way, made a hash of the rule of law, especially in appointing their hand-picked people to the top jobs in the government departments.
When Chief Justice Iftikhar Muhammad Chaudhry first challenged Musharraf, he was lucky to have done so at a time when he could champion both the rule of law by refusing to take dictation from a military ruler, and the institutional independence of the judiciary vis-à-vis the executive. That partially explains why Musharraf suddenly became so bereft of support among the chattering classes: the rule of the law brigade that once favoured him switched sides and saw in Chaudhry a more robust – and much less sullied – advocate of their cause.
After reaching its zenith in the run-up to the 2008 election and remaining there until the end of 2009, the consensus between the two camps behind Chaudhry has been hailed as a period of unprecedented political activism and enlightenment in Pakistan’s recent history. In the last one and a half year, however, this consensus has waned even if it has not completely coalesced back into the political and ideological divides of the yore. The Supreme Court’s uncompromising stance over the appointment in superior judiciary allowed the government to put a judiciary versus parliament spin on it. The government’s continued ability to bypass the Supreme Court’s injunctions with relative impunity over official postings and transfers and controversial political and corruption-related cases has also taken some sting out of Chaudhry’s loud warnings to the government for failing to listen to him. The ring of hollowness around these warnings seems to assume a more concrete identity with each passing day. In an apparent sign of desperation, the Supreme Court and Chaudhry have made it a routine to call the government officials to the court and berate, and threaten them over their failure to implement judicial orders. With each move by the government to frustrate the court, however, these warnings to the bureaucrats and law officers of the government look like the only thing that the court and the judges can say and do. By the twisted logic that so regularly operates in Pakistan in determining the course of events, the Supreme Court now looks like a virtual replacement of the establishment division in the federal secretariat, with the transfers and postings of the government officials being its greatest concern.
Besides allowing the government to raise, rather meekly, the subject of institutional transgression, the Supreme Court is helping the erosion of its support among the rule of the law followers. The daily tussle between the government and the judges is now increasingly being seen as a turf war – and not a confrontation between an illegal ruler and a born-again judicial reformer bent upon cleaning up the Augean stables of Pakistani politics – in which other actors are trying to capitalise on the situation for their political gains. If nothing else, it allows the government to get away with all its acts of omission and commission, and weakens the moral vigour of the argument in favour of both the rule of law and respect for institutional boundaries. Chaudhry and his fellow judges will do well by trying to bring this vigour back.