The judicial non-crisis – by Cyril Almeida


Related article on LUBP: Treason: Let us apply Article 6 on CJ Iftikhar Chaudhry

THE great judiciary-executive ‘clash’ is proving to be damp squib. Hearings come, hearings go, the odd admonishment here, the occasional threat there, none of it adding up to much, the protagonists seemingly content to puff out their chests and beat the drum of rhetoric.

So what’s going on?

The government’s strategy is quite obvious: stall. Buy time, somehow, anyhow, and let the clock wind down on the government’s term as far as possible. The why isn’t hard to figure out. Zardari & co are convinced the robes are getting their cues from Raiwind and/or Rawalpindi. Which means they fear the ultimate goal may be the government’s ouster, or of Zardari and his circle.

With that ultimate fear in mind, getting roughed up a bit in the court of public opinion — which happens every time the letters ‘NRO’ appear on the court’s docket — doesn’t bother Zardari, Babar Awan, et al too much.

The political calculation is straightforward: drag out the impasse with the judiciary for another year or so and the incentive for the robes to bring their gavels crashing down on the government will begin to disappear.

Another year or so and the government will have been in place for nearly four years, meaning an election would be around the corner. At that point making a cause célèbre out of Zardari & co would be counter-productive — after all, why hand them a potent rallying cry (‘Punjabi establishment strikes again’) when a hiding from the electorate would be imminent?

So crisis management rather than crisis resolution is Zardari’s game with the judges.

But what is the court up to? Why is it seemingly content to engage in an inconclusive, low-intensity conflict when a year ago, with the NRO judgment of last December, it appeared to contemplate use of the nuclear option?

The Zardari camp thinks its knows, believing the court may be trying to keep the government on the defensive, to hurt it politically and in the court of public opinion with a constant drip-drip of allegation and innuendo.

The why is complicated (and also at odds with some of the other internal theories) but it has something do with the cues the Zardari camp believes the robes are getting from the uniforms and Mian Sahib. When the time is ‘right’, the thinking goes, a concerted push will occur and the nuclear option will be activated.

Just because Zardari & co see the world through a prism of intrigue and conspiracy, though, doesn’t mean the rest of us need to as well. For sure, there is some confluence of interests between the robe, the uniform and Raiwind: at the very least, they’d rather Zardari were not running the country. But there are also independent agendas and unique constraints which impact on the other institutions and would-be saviours.

Much of what the court is doing, and therefore also what it isn’t doing, can be explained in terms of institutional concerns and constraints. A necessary caveat: the inordinate interest in the fate of certain erstwhile NRO beneficiaries betrays a sense of the personal. But extra enthusiasm to give it to a certain bunch in the neck doesn’t mean the ultimate agenda is just to rough up, or vanquish, a few, specific political actors.

If there is a judicial trend that is discernible, it is this: carve out and fiercely protect an institutional space for a judiciary that has historically been trampled by the other institutions and powers-that-be.

The biggest fight to date — not in terms of fireworks, but in substance — has been over the appointment of superior court judges, first over the fate of justices Ramday, Saqib Nisar and Khwaja Sharif and now over the 18th Amendment appointment process. That’s not very surprising. The goal of a hermetically sealed judiciary, wherein the judges dictate who can become a member of their fraternity, is perhaps the single biggest step towards a judiciary which can assert itself as the constitutional framework aspired for it to do.

Remember, the judges are fighting the weight of history, not legal theory. If they err on the side of excess — pushing back on the appointment issue even when there are genuine concerns of jurisprudential overreach — they can justify it as necessary to throw off the executive’s yoke. In a deterministic sense, they are probably right.

Now slot the NRO saga into this framework. Keeping the government on the defensive, keeping it mired in controversy and muck works to the court’s advantage. If the government tries to create fissures and divisions in the superior judiciary, as the judges must surely suspect some in the government would love to do, the court can cry foul — activating the media, public and opposition combine of true believers and opportunists waving the flag of the heroic Court of CJ Iftikhar against the villainy of the rule of Zardari.

So the NRO/NAB stick is looking less and less like a knife meant to be plunged into the heart of the government and more and more like a blunt object to rap the government’s knuckles and thwart any clever ideas about undermining or dominating the judiciary.

There is another reason for the court’s restraint — and it also explains why it’s difficult to convince Zardari & co that institutional, not personal, agendas are driving the court’s actions: there is resistance from within the legal community, both bar and bench, to the idea of the court getting embroiled in, or triggering, national political instability.

The distinct unease in certain quarters at the possibility of a make-or-break confrontation with a political government must certainly be acting as a break on the court’s ambitions.

Ultimately, a judiciary has no tools of its own to directly implement its order, or, more importantly, to protect itself. Push too hard and the original goal — carving out a secure institutional space for itself — is jeopardised because the court loses what are its most valuable sources of protection: public opinion, judicial unanimity and the moral upper hand.

So the court appears to have carefully calibrated its strategy: keeping the government mired in just the right amount of controversy such that the government is rendered impotent without damaging the court’s own public standing.

That status quo looks set to hold for some time.