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So, no more coups in Pakistan?

Since March 7, 2007, the Supreme Court of Pakistan, especially Chief Justice Ifthikar Chaudhary, has been the nation’s main agenda-setter. It is now accepted that the downfall of the former President, Pervez Musharraf, began that fateful day more than two years ago when he summoned Mr. Chaudhary and asked him to quit, and to his shock, met with refusal.

The “black coats” agitation triggered by this incident forced a rethink in the Bush administration on its support to the military ruler, gave Benazir Bhutto an upper hand in her negotiations for a “deal” with General (retd.) Musharraf for what was called a “transition to democracy,” and enabled the return of Nawaz Sharif. The Supreme Court unnerved Gen. Musharraf enough for him to declare an emergency to protect his 2007 election as President. He jailed Mr. Chaudhary and 60 other judges, but both he and the Pakistan People’s Party-led government that came to power in February 2008 reckoned without their staying power.

After Mr. Chaudhary’s triumphant restoration as Chief Justice on March 16 this year, the expectations from him have been sky-high. In a country where governance is abysmally poor, people are increasingly turning to the Supreme Court for redress of all kinds of grievances. Mr. Chaudhary, for his part, made it clear from day one of his comeback that he is a man on a mission.

Any given day, Court Room 1 is packed with a range of petitioners. From eunuchs wanting recognition as the third sex to widows fighting off land sharks, the extremely poor with hardly a shirt on their backs, orphans, children in jail — they are all landing up at his door. What the government cannot do for them, they firmly believe the “CJ” will. Very often, he goes at least some distance in meeting their expectations.

His emphasis is on immediate redress to the petitioner: he consoles the crying widow and threatens to send the land grabbers to jail, promises the eunuchs his consideration, makes it plain to the lawyer of a property developer accused of defrauding a bank that he is on a slippery ground.

Money owed? Shake out pockets, make the man promise to pay up a certain amount by a certain date. Accused jumped the country? Cancel his passport, alert Interpol, extradite him. The government tried to slip in a levy on petrol under a high-sounding environmental name? Cancel it; does not matter if it has been passed by Parliament in the budget, and the President is forced to reintroduce the tax under a more honest name, through an ordinance. Swaggering cops are reduced to bumbling caricatures, self-assured lawyers who think they can wing it through a hearing are asked to go back and do their homework.

Mr. Chaudhary works later than other judges do in order to plough through the backlog of cases. Sitting through a working day in his courtroom is enough to make lawyers and government officials wilt but it can be akin to watching an extended Bollywood flick where the hero is determined to change the world in 24 hours, right down to Mr. Chaudhary’s utterances: “Do you know where you are standing? This is the Supreme Court. We can cancel your bail in one second, send you back to jail. So don’t play any games here.” At the very least, the Chief Justice is determined to change the way Pakistanis have perceived their higher judiciary.

As many Pakistanis see it, an important element of that task was accomplished on July 31 when a 14-judge Bench struck down as illegal and unconstitutional the November 3, 2007 emergency imposed by Gen. Musharraf. The judgment has led to the sacking of all judges who validated the emergency, plus all the judges appointed by the Chief Justice who took over after Gen. Musharraf sacked and arrested Mr. Chaudhary.

The 23-paragraph short order Mr. Chaudhary read out in court has been hailed as unparalleled in the history of Pakistan for the overhaul of the judiciary that it has set in motion. In its humiliation of Gen. Musharraf, even without passing any order against him, the verdict is seen as a strong warning to ambitious generals that the Supreme Court cannot be taken for granted again. But in its humiliation of the de facto Chief Justice Abdul Hameed Dogar, who ran the Supreme Court from November 3, 2007 to March 22, 2009, it is a stronger warning to judges of the fate they could meet with if they end up validating coups.

The verdict steered clear of any confrontation with the present political dispensation possibly for fear of destabilising the system. For instance, it left untouched President Asif Ali Zardari, whose oath of office was administered by Mr. Dogar. It left it to the government to decide what to do with the National Reconciliation Ordinance, a legacy of the November 2007 emergency, by which Mr. Zardari was able to get acquittals in a host of corruption cases against him.

But does the verdict ensure that there will be no more coups, and no more judges to legitimise coups? Certainly, the mood created by this judgment and by the lawyers’ agitation in general should force a future coup-maker to think twice before launching into Musharraf-like adventurism, and a future judge to think many times before rolling over for a dictator.

But Pakistanis who have lived through more military coups than they care to remember recall that a similar mood prevailed in 1972 after the ruling in the historic Asma Jilani vs. Government of Punjab case. The petitioner (later Asma Jehangir, the eminent human rights lawyer) challenged General Yahya Khan’s 1969 martial law. The main question before the Supreme Court was to decide on the validity of a detention — her father’s — made under the martial law, and to pronounce on the legality of a 1958 doctrine (to legitimise Gen. Ayub Khan’s takeover) that a coup successfully carried out became its own justification.

Chief Justice Hamood-ur-Rehman ruled that Yahya Khan was an “usurper” and that his martial law was illegal. The verdict came when Yahya Khan was no more in power. In 1973, the recently partitioned Pakistan adopted a new Constitution. The framers put in Article 6, which makes subversion of the Constitution a treasonable offence punishable with death. Yet barely five years later, Zulfikar Ali Bhutto was in jail, and his army chief, General Zia-ul-Haq, declared martial law and took over the running of the country.

When Begum Nusrat Bhutto challenged the martial law on the basis of the verdict in the Asma Jilani case, the Supreme Court told her this was different as General Zia had only suspended the Constitution — not abrogated it — with the intention of restoring it as soon as possible. The court went on to validate the martial law by invoking the infamous “doctrine of necessity.”

Gen. Musharraf also won legal validation for his 1999 coup against the Nawaz Sharif government, once again on the basis of the doctrine of necessity in the 2002 Zafar Ali Shah case.

Against this background, it is difficult to say the Supreme Court has now once and for all closed its doors to dictators. One view is that the Bench could have strengthened its judgment with three crucial elements. It could have struck down the doctrine of necessity to ensure that no judge ever invokes it again; it could have also ruled that the Supreme Court does not have the powers to delegate, as it did to Gen. Musharraf, authority to anyone to change the Constitution; and three, it could have stated clearly that the Chief of Army Staff cannot take any extra-constitutional step.

Another question has been raised about the Supreme Court verdict. While the 14-judge Bench castigated Mr. Dogar, the Chief Justice appointed by Gen. Musharraf, for “judging his own cause” — his validation of the emergency also legitimised the appointments of the judges, including his own as Chief Justice, under the PCO — the same can be said of this Bench. And of course, there is the question whether the court should not have gone all the way back and punished judges who validated Gen. Musharraf’s 1999 takeover.

Shujat Hussain, leader of the Pakistan Muslim League (Q), who is known for a pithy turn of phrase, was among the first to cut down any idealistic notion about the verdict with the words that “no one has ever been able to block the path of two trucks and a jeep” rolling out of Rawalpindi whenever they choose to do so. Perhaps the best that can be said for now is that the judgment has closed a particularly bad chapter in Pakistan’s history.

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