The ruling of the Supreme Court against the Nov 3 reimposition of martial law by Musharraf is indeed heartening, but its real value will be tested when the Supreme Court refuses to ratify the action of a sitting usurper, if there was to be one in the future, and get away with it.
Can this judgment ensure that? Normally military takeovers are after a longish civilian rules. Because of lack of public support, any sacrifice that a sitting judge would give in opting to be sacked rather than condone martial law, would go unnoticed, like it did in the case of numerous conscientious judges of the Supreme Court in the past who preferred to go home rather than condone an unconstitutional takeover.
We as a nation neither protested nor made heroes of the judges who sacrificed their future at the alter of their principals. This time ground Chief Justice Iftikhar Chaudhry got the public support and, more importantly, the support of the lawyers, because Gen Musharraf had already ruled for eight years and additionally crossed all limits of decency, when he not only sacked scores of judges but arrested them and their families. This kind of a situation, where public support can be assumed, would not be there in case a General, six to eight years from now, decides to take over, when the public are fed up with the ineffectiveness and corruption of the incumbents. In less than two year rule of this government we see reports of mega corruption.
So declaring martial laws illegal after the dictators has fled the country may not be enough to keep future adventurers out. It is, however, a good start and has very intelligently culled the stuff in the superior judiciary that had hurriedly been inducted, to make the process irreversible.
There is no alternative to strong institution building as a precursor to national building, lead by the judiciary. Chief Justice Chaudhry has more than four years to go; a very long term from our standard. He has a great opportunity to build the judiciary into a strong, effective, and well respected institution.
In India the Election Commission's credibility in the seventies and eighties was about the same as the credibility, of our Election Commission. Since then, however, the Indian Election Commission has attained a stature where no party, however unreasonable or radical, questions the results of an election. Even a sitting prime minister cannot depend on the deputy commissioner to facilitate holding of public rallies, nor can an inspector general of police hope to ensure his bright future by assisting the sitting chief minister of the state. The bureaucracy, the police and the civil armed forces are deemed to be on deputation to the Election Commission as soon as the elections are announced. The Chief Election Commissioner can only be prematurely removed through impeachment by the Parliament, at par with the procedure to remove the president.
Someone in Pakistan has to take on the challenge of making the Election Commission a credible body, just as the superior judiciary has become. The most obvious segment that this responsibility rests on are the politicians. The current discussion between the major parties on implementing the CoD would be an ideal opportunity to start the process. A selection of a firm and neutral person and a proven administrator as the Chief Election Commissioner would take matters forward. The present judiciary, I am sure, will effectively support such a CEC, if he is empowered by an appropriate law.
Visualise a situation where frequent elections are held, before the patience threshold of the public and establishment is reached and where the results are not questioned owing to the credibility of the EC. You would have the ideal formula, where neither the newly added clause of condoning martial law being termed as a misconduct in the Code of Conduct of judges, would need to be used, nor would a military adventurer find justification and support to venture again.
If only the spirit in which the Charter of Democracy was signed would return now and the politicians do not wait for the rekindling of that spirit until next time they have a summit in London to highlight their love for democratic norms.
By Tasneem Noorani