The superior judiciary's seeming convergence with the anti-government sentiments in the establishment and media has sparked unease.
One photograph that many a Pakistani newspaper had on Thursday morning was of lawyer Aitzaz Ahsan driving the Chief Justice of Pakistan Iftikhar Muhammad Chaudhry to court during the lawyers' movement for restoration of the higher judiciary.
Once iconic, that photograph is now ironic. Mr. Ahsan was the Chief Justice's counsel when he legally fought his removal by the military ruler Pervez Musharraf. After the Supreme Court reinstated Mr. Chaudhry, the much feted Mr. Ahsan vowed he would never appear before his former client.
After nearly three years, that pledge stands withdrawn. On Thursday, he appeared before Mr. Chaudhry to contest the apex court's decision to charge his current high profile client, Prime Minister Yusuf Raza Gilani, with contempt of court for repeatedly refusing to write to Swiss authorities asking for reopening corruption cases against President Asif Ali Zardari.
On the drama-craving television channels, Mr. Ahsan's appearance before the CJP seemed to have overshadowed the appeal he filed on the Premier's behalf. But his decision also pointed to how perceptions about the Supreme Court have changed from 2007, when it could do no wrong, to the present times, when some of its decisions are being openly questioned by its staunchest supporters during the Musharraf days, including in the legal community.
The petition that Mr. Ahsan filed — and which the Supreme Court rejected; Mr. Gilani has to appear in court on February 13 — too referred to the lawyers' movement, pointing out that it would be ironic to imprison a democratically elected Prime Minister who had released the judges detained by the Musharraf regime while no action was taken against those who sacked the superior judiciary in 2007.
Mr. Ahsan is not the only one to express unease over the trajectory that the superior judiciary has taken. Many others are concerned too that it seems to converge with the anti-government sentiments in the establishment and the media.
Unhappy with the court's verdict in the ‘memogate' case, Asma Jehangir risked being hauled up for contempt by the Supreme Court to ask if “this is the judiciary of the people or judiciary of the establishment”.
Another leader of the lawyers' movement and former president of the Supreme Court Bar Association, Muneer Malik, has questioned the judiciary's decision to take up some cases that are more about politics than contested points of law.
He told The New York Times: “In the long run this is a very dangerous trend. The judges are not elected representatives of the people and they are arrogating power to themselves as if they are the only sanctimonious institution in the country. All dictators fall prey to this psyche — that only we are clean, and capable of doing the right thing.”
Mr. Zardari's “Mr. 10 per cent” image notwithstanding, the latest stand-off between his government and the apex court over ‘memogate' and the National Reconciliation Ordinance has left a sizeable section of opinion-makers openly critical of the superior judiciary for increasingly looking like a “vengeful institution rather than a neutral arbiter”.
“The judiciary has divided the nation” asserted Mohammad Waseem, a professor at the Lahore University of Management Studies in an article in the Dawn.
The comment reflected the ongoing debate over what is perceived as the “supremacist” role of the judiciary which, riding on the wave of the lawyers' movement, has been successful in asserting itself as the conscious-keeper of the nation as opposed to the “corrupt” and “blundering” Pakistan Peoples Party-led federal government.
For diehard PPP supporters, the Supreme Court's prompt attention to some of the cases smacks of its traditional anti-PPP bias, epitomised in what is referred to as the “judicial murder” of party founder Zulfikar Ali Bhutto.
“In the several months that it took the current governing alliance to restore the judges to their positions, there was no legal challenge against the alliance in general and the PPP in particular in the higher or superior judiciary. Post-restoration, however, the apex court started fielding not just case after case against the ruling dispensation but also invoking its suo moto jurisdiction to try it on counts still without a petitioner,” pointed out Adnan Rehmat in his article in The News on Sunday titled ‘The court of Supreme irony'.
Knowing full well the general aversion of the chattering classes for Mr. Zardari — primarily because he has not been able to shake off the charges of corruption leveled against him during wife Benazir Bhutto's two stints in the Prime Minister's office — another lawyer Waqqas Mir maintains that it still does not justify over-reach by any institution of the state.
“We cannot allow ourselves to be swayed by the arguments that if the executive is not doing its job properly then the courts should step in to solve the problem…. Surely we cannot argue, by the same logic, that if courts do not do their job properly then the Executive or the Legislature should be out convicting people?”
Viewing the judicial activism in the context of “jockeying for power and influence in the formative phase of democratic transition”, political analyst Hasan Askari Rizvi warned that the increased tension between the elected executive and non-elected Supreme Court could be used by the opposition to destabilise the government. Given the state of affairs in the country and maintaining that the military's capacity should not be underestimated, he wrote in Pakistan Today: “In case of direct military intervention, the superior judiciary will also be removed. Thus, the decline and discredit of democracy endangers independent judiciary.”