Burying the doctrine of necessity

As we approach a year since Musharraf's departure, it is worth asking whether there is any substance to the rhetoric being bandied around about the impossibility of future military coups
By Aasim Sajjad Akhtar
Pervez Musharraf is back in the spotlight. He would, of course, have preferred not to have ever vacated it. But in a display of rare collective action, the people of Pakistan united to force him out of his beloved uniform, various positions of power, and eventually, Army House. As we approach a year since his demise, and with his nemesis Chief Justice calling legal attention to Musharraf's actions of November 3 2007, it is worth asking whether there is any substance to the rhetoric being bandied around about the impossibility of future military coups.
It is important to bear in mind that while generals and judges have been the force behind the many coups in this country, ordinary people have often acquiesced to them. In other words a culture has been created whereby coups are considered a regular feature of our political life and, more often than not, are even depicted as necessary because of the failings of politicians. In recent months, more than one (mischievous) commentator has hinted at the fact that Musharraf did not preside over as many problems in 9 years as Zardari & co. have managed to create in a few short months. This culture of tolerating and even encouraging military coups is based on convenient half-truths: many of the problems that the elected government is dealing with are gifts bequeathed by Musharraf and his coterie of sycophants.
In any case, the point is that military coups will be confined to the dustbin of history only if a critical mass of the public decides once and for all that the idea of a sitting general invoking a mythical mandate to depose an elected government is simply unacceptable. I suspect that events over the past 30 months or so have taken us much closer to developing this critical mass and thereby countering the many rats sitting in our media, academia and other opinion-making institutions who maintain a commitment to the tradition of bureaucratic paternalism that was left behind by the British.
That having been said, the role of judges and generals needs to be kept front and centre. To a significant extent the movement that erupted in March 2007 has made it difficult for superior court judges to support military takeovers, but as was proven in November of that same year, judges in Pakistan are not blessed with either great memories or democratic sensibilities. The one major problem with the lawyer-led movement that culminated in the Chief Justice's restoration in March this year was its elevation of the judiciary to a ridiculously exalted position, whereas in fact the judiciary cannot be the guarantor of public peace in society. That is the role of people acting through their representatives. And throughout Pakistan's history, with the obvious exception, judges and generals have conspired to undermine the sovereignty of parliament.
Of course things get complicated when dummy parliaments -- such as the one Pervez Musharraf sat atop between 2002 and 2007 -- give legal cover to the actions of dictators. The fact that PML-Q type parties are conjured into existence to give self-absorbed generals a formal mandate to rule also relates back to the earlier point made about the culture of tolerance for military takeovers due to the sheer cynicism and opportunism of some politicians.
However if one is to assume that the majority of politicians in this country prefer democracy -- and not of Musharraf's 'guided' variety -- to dictatorship, then the best way that judges can consolidate the process of democratisation is by not interfering in matters that should be the purview of the legislative branch of the state. If instead the Chief Justice takes the meaning of suo moto to its logical extreme so as to confirm his 'populist' leanings, the already limited patience of the general public with democracy (read: elected representatives) will be further eroded.
Here again there is a complication: as I mentioned last week (and as much more prominent writers such as Arundhati Roy and Samir Amin assert ever so eloquently), the ability of elected leaders of third world countries to actually articulate meaningful autonomy in the policymaking realm is compromised more and more with each passing day. This is because, following the end of the Cold War, democracy and the so-called 'free market' have become almost synonymous. As such, democracy means the right to elect your representative so that s/he can implement economic and social policies that are already set in stone.
So let us take the example of increasing prices of basic utilities. The elected government -- not a revolutionary one, remember – has no option but to increase prices if it wants to be considered a member of the comity of democratic (read: committed to the 'free market') nations. The Chief Justice then takes suo moto action because this is a patently unpopular decision. The subsequent presidential ordinance underlines that if elected representatives and the superior judiciary continue to tread their respective trajectories, a quick and rather gory conclusion to this latest experiment with (free market) 'democracy' is quite likely.
Ideally, the dissatisfaction amongst the general public with the economic and social policies of the present regime would be manifest in an electoral rejection in 2013. It is another debate entirely that the alternative winners of elections are just as unwilling to make a meaningful break with 'free market' orthodoxy. In any case, for the time being what should concern us is the possibility that 'populist' judges confront the sitting regime with greater aplomb and thereby provide generals with a brand new opportunity to 'save' the country from impending collapse.
I am not suggesting that this doomsday scenario will unfold. I am simply pointing out that the events that took place between March 2007 and March 2009 do not guarantee that our judges have turned over a new leaf. Over the next few days and weeks it will be interesting to observe whether or not the Supreme Court genuinely takes on the military establishment vis-à-vis the hearings on Musharraf's actions. Musharraf may well be retired but there is no question that General Headquarters would not appreciate even an ex-Chief of Army Staff being convicted in a court of law. It sets a very bad precedent and damages the image of the army as an institution. If the Supreme Court does not back down and takes the ongoing hearings to their logical conclusion, and then follows up by not encroaching into the political realm, we may actually have seen the back of coup-making in this country.