Monday morning was one for the believers. Fairy-tale endings are indeed possible in Pakistan: Iftikhar Chaudhry will once more be the chief justice of the Supreme Court of Pakistan. The lawyers and their supporters have taken a lot of flak, including in these columns, over the course of their movement. But credit is due to them for having run a determined and largely peaceful campaign in defence of a basic tenet of democracy: the right for a constitutional office-holder to not be ousted in an unconstitutional manner.
In this land, where talk of democracy has rarely matched its practice, a potentially important marker has been laid down. There are limits to what a military government or even a democratically elected one can get away with. Importantly, too, it has been shown that a democratic principle can defeat political expediency without triggering chaos.
Symbolism aside, the way forward will depend on the response of three groups: the superior judiciary, led by Iftikhar Chaudhry; the government, de facto led by President Zardari; and the opposition, led by Nawaz Sharif.
Start with the court of Chief Justice Chaudhry. Upon returning to office, the chief justice will be confronted with many of the issues he was grappling with when ousted from office. Top of that list are constitutional distortions and the tension between constitutional oversight of the executive and interference in its policies.
Gen Musharraf’s acts under the Proclamation of Emergency and Provisional Constitutional Order of November 2007 complicated the constitutional mess that his 17th Amendment created. But by reinstating the chief justice and the few remaining holdouts without recourse to parliament or a constitutional amendment, the government appears to have ceded that Gen Musharraf’s actions have no constitutional cover.
From here it will be hard to argue that some results flowing from Gen Musharraf’s actions — such as the tinkering with the structure of the higher judiciary and its composition — are correct, while others are not. But the chief justice should exercise caution. Sweeping away the legal detritus of the Musharraf era may appear easy; controlling its effects is not. The chief justice should allow parliament an opportunity to resolve the constitutional imbroglio and to right the balance of power among state institutions. Having said that, the onus is on parliament to take up the constitutional issues urgently — it would be wrong to expect the Supreme Court to wait on the sidelines indefinitely.
The second issue that Chief Justice Chaudhry should pay heed to is the superior judiciary’s role as executive watchdog. In a state as governance-challenged as Pakistan, there are seemingly limitless opportunities to use suo moto powers or public-interest litigation to right every wrong. But there is a difference between, say, a court using its powers to find missing persons and a court trying to determine the price of atta. Having been returned to office on the back of a popular movement, Chief Justice Chaudhry will feel the pressure to be the people’s champion.
That may well be necessary in certain circumstances, but the Supreme Court must not become a policymaker. If, for example, the people don’t like the government’s food or fiscal policy, the corrective measure is to vote it out in the next election. Judicial intervention may be popular, but what is popular at any given time isn’t what is best from the perspective of systemic stability.
Turn next to the government. It has dealt its reputation a grievous blow in recent weeks. While Chief Justice Chaudhry may be back, the fate of the Sharifs and PML-N’s government in Punjab is not resolved. The massive turnout in Lahore sent a clear message: the PML-N cannot be shut out of power. It is now up to the government to extend an olive branch, make amends and show the genuine sense of bipartisanship that was on display in the weeks after the February 2007 election. Actions not words are the need of the hour.
Finally, the opposition. The PML-N may be tempted to go for the kill and topple the battered federal government. But it should resist that temptation. On Sunday, the party showed great maturity by leading a peaceful protest which captivated the country rather than shook its foundations with violence. But public agitation is a high-risk strategy and a political slug-fest between the PML-N and the PPP is always bad for the country.
If the government makes the right moves, the PML-N should reciprocate and go back to the business of governance in Punjab and opposition within the confines of the parliamentary chamber at the centre. Monday was a good day for the transition to democracy, but the democratic project needs many more good days ahead if it is to succeed.