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The irresistible challenge

The three opportunities that existed for damage limitation were botched. The first was of not interfering in the peace-making mission that Chaudhry Shujaat led to the CJP’s residence on March 9. Instead, the police arrived to remove the CJP’s cars with forklift trucks while Shujaat was requesting the CJP to agree to some settlement.

The second was that the president could have publicly apologised for the police’s misbehaviour with the Chief Justice. Third was that the government representative could have openly stated that the government has no objection to an open trial. Instead, it continuously argued the opposite.

Now it is a slippery path on which the Musharraf government rests on with respect to the CJP case. Alongside this crisis there are of course other broader questions of Pakistan’s politics that are also seeking answers. For example, what is the transition process from this army-engineered democracy to credible democracy? If and who will elect General Musharraf for another term as president ? Will there be a deal between the PPP and the Establishment? Those are important questions the answers to which will also be linked with how this lawyers’ movement develops and what turn the CJP’s case takes.

After all the most significant outcome of the lawyers’ movement is a genuine resistance against the ‘invisible’ power that has intermittently manipulated the working of the judiciary. The army leadership is not alone in committing this grave offense. Our recent political history documents that the elected leaders, including Nawaz Sharif and Benazir Bhutto, too, have attempted the same. However, the ways of the military high-handedness proved to be the trigger.

The military president moved on multiple recommendations with the reference, as was allowed by the constitution. It was in the manner that the filing of the reference was initiated, the response of the CJP and the reaction of Establishment essentially triggered what seems to be an unprecedented challenge to the culture of Pakistan’s near unaccountable state power. This consistent and unprecedented challenge has decisively begun the unraveling of what was hitherto an unchallenged power calculus.

There are risks that the lawyers’ movement faces. Two will especially threaten the original cause of establishing the independence of the judiciary and rolling back of all influence that other institutions, including the executive or the army, has attempted to exert on the judiciary. The first risk is of being hijacked by politicians and pushing for Musharraf’s removal at all costs. The CJP case is not the arena to fight the battle against Musharraf. For that there are other multiple arenas and strategies. The second risk is of the lawyers growing passion and weakened reasoning, which is calling for the withdrawal of the reference and the reinstatement of the ‘ineffective’ CJP. The only valid demand of the protesting lawyers must be that the Supreme Judicail Council must ensure that the CJP gets a fair trail.

Similarly, the CJP’s petitions must be given a fair hearing. Clearly an open hearing of the case by the SJC will guarantee a fair trial. The SJC will then indeed be on trial itself. The hearings on the petition against the illegal removal of the CJP will also determine the correctness or otherwise of the president’s action.

While the lawyers are within their constitutional rights to hold peaceful rallies calling for a fair trial, their impassioned demands calling for withdrawal of the reference, etc, are illogical. They defeat the purpose of ensuring the functioning of an independent judiciary and of rule of law. The process of law must take its course for various players within Pakistan’s power calculus to be ‘put into their place’ and to be reined in legally. Violence, etc, must not be allowed to short circuit a process that may for the first time in Pakistan’s history illustrate the power of the constitution; of how unaccountable and unconstitutional power can be checked. Any demand that seeks no accountability for any servant of the state or those holding public office, is in fact undermining rule of law.

Hence, the demand of withdrawing the reference cannot be treated as a reasonable and valid if the objective is establishing rule of law. If the lawyers’ movement proceeds responsibly, it will be the first time that we will witness within Pakistan the limits of state power, of danda power and of manipulation. Most importantly, it will be the setting of the limit to these unconstitutional, covert and unaccountable powers, not by violent politics, but indeed by a movement that is pushing for that powerful and intangible phenomenon upon which the foundations of compassionate and humane societies are built...the phenomenon of rule of law as embedded in the constitution of Pakistan.

In Pakistan, the ruling institutions and individuals have refused to learn from their own mistakes. The arrogance of power loathes reflection. Only unmanageable crisis often undermines arrogance and illogical calculations. As we seem to witness within Pakistan’s power context

Nasim Zehra is a fellow of Harvard University Asia Center, Cambridge, Mass. and Adjunct professor at SAIS Johns Hopkins University, Washington DC