Pakistan: Now another institutional clash?

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Speeches the other day by COAS General Ashfaq Pervez Kayani and Chief Justice of Pakistan (CJP) Iftikhar Mohammad Chaudhry had much in common and much to commend them. However, they did also contain some things implicitly that have aroused concern. On the face of it, the COAS in his speech to officers at GHQ seemed to be responding to recent criticism of some retired Generals charged with interfering in the political process (the Asghar Khan case, in which a former COAS and former head of the ISI have been squarely put in the dock), and corruption (in the NLC and now Fauji Fertilizers cases). The COAS’ take on this was that individuals’ mistakes in the past should be left to the judicial (due) process and guilt or innocence should not be presumed before that. Additionally, and perhaps more ominously, the COAS hinted at judicial berating and a media trial of the institution itself, which the COAS believes was undermining the public’s confidence in the military, creating rifts amongst the high command (perhaps mere speculation) and between the high command and the rank and file of the military. Obviously, any such development that impacts on the internal cohesiveness and discipline of the military is bound to arouse the concern of the top commanders. At the hands of the judiciary too, apart from the Asghar Khan case, the missing persons and law and order cases in Balochistan have seen the judiciary criticising the policies and actions of the military and its intelligence arms in unprecedented fashion. It has been a rough two years for the hitherto unassailable and immune reputation of the armed forces, starting with the Abbottabad raid and winding its way through other embarrassing revelations and open criticism. This has naturally rattled an institution and its top command, accustomed as they are to a culture of unquestioning impunity inherited from our past of being a security state. The CJP hit the nail on the head when he said in his speech to civil servants that national security is no longer measured in terms of military hardware, but rather whether a state is answering to the needs of its citizens. Were that not the case, a superpower such as the Soviet Union would not have been banished into oblivion. But where there is room for concern is the reiteration by the CJP of the “ultimate jurisdiction” of the Supreme Court (SC) in matters constitutional and legal. The letter of the law certainly conforms to the CJP’s formulation. However, in its zeal to correct “past wrongs” and set ‘everything’ right, the SC stands accused of intervening in matters beyond its turf. This activism, arguably unfettered by the time honoured juridical principle of restraint, has caused the court to become increasingly controversial, having brought it into conflict incrementally with the executive, parliament, and now potentially the military. Rights and wrongs embedded in the system inherited from a chequered past cannot be transformed to the ideal overnight with the wave of a magical judicial wand. Without in any way disrespecting the good intentions of the court, it must be reiterated, as we have consistently done in this space, that the respect and dignity of the judicial institution is too precious to allow even the shadow of doubt or accusation to fall upon it. In this regard, where there is much to commend in the SC’s judgements over the past almost three years, there are also rising concerns about conflict and clashes between state institutions, which is neither the intent of the court, nor welcome, yet seem to be the inevitable and logical outcome of the court’s well intentioned but arguably overzealous interventions in matters of great and even small import. It is not without interest to examine the process of evolution of the democratic system in the last five years. State institutions seem to be jockeying for turf and space, a process known to have been part of the evolution of mature democracies. President Zardari the other day characterised this process as the “dying kicks of the old order”, implying the certainties of the past on which state institutions may have rested so far, were yielding to new realities in which each institution had to re-examine its powers, boundaries and limitations. It is no surprise therefore that every time a powerful head of one or the other state institution speaks publicly, the common point of reference tends to be a recognition of, and respect for, the legitimate purview of each institution, and appeals for restraint as far as straying into the turf of other institutions is concerned. May this democratic evolution finally arrive at an agreed delineation of these matters that proves mutually acceptable to all institutions. There lies hope and confidence of a better future.