Is democracy 'reborn' in Pakistan?

The decision on Friday to reinstate Pakistan's Supreme Court Chief Justice is a victory for democracy, but the euphoria around the decision may be premature.

The decision on Friday of a panel of supreme and high court judges to overturn the suspension of Chief Justice Iftikhar Chaudhry inspired a burst of celebration from the lawyers who had gathered outside the Supreme Court of Pakistan.

The case had been seen as an attempt by the military regime to consolidate its control over yet another pillar of the state. But before the street-dancing and showers of rose petals had ended, the lawyers and opponents of President Pervez Musharraf were already declaring that a freshly confident and independent judiciary will lead the charge to reinstate democratic norms that have been eroded over the decades.

Despite exaltations by lawyers and activists of a "rebirth of the country" in a democratic mold, the decision may mean little for a redefinition of the political power equation, some Pakistani legal experts say. The real test of the judiciary's strength will be in showing its independence from both the military government and political influence. Such objectivity, experts say, will also mean resisting the influence of pro-democracy activists who seek to empower the courts at President Musharraf's expense.

"This decision in itself doesn't actually assure an independent judiciary," says Asma Jahangir, a lawyer and the head of the Human Rights Commission of Pakistan. "The judiciary will have to take steps towards its own reform. There is still a long way to go."

Activist judges in Pakistan?

Many observers say that since Musharraf dismissed him on March 9, the chief justice appears to have remained aloof from political party leaders and has been careful to never address any rallies hosted by political parties. Some legal experts now fear that the decision has led some of Musharraf's opponents to expect the Supreme Court to act less like an unbiased arbitrator and more like pro-democracy activists.

"Politicians have failed the people of this country, and now they expect the judiciary to act where they have failed," says Senator Khalid Ranjha, a lawyer and a former law minister.

"There is a thin line between being proactive and getting involved in politics," says Senator Ranjha. "I hope we don't come to a stage where there is constant pressure on the courts – from people and politicians. The judiciary needs to be impervious to all kinds of pressure. Otherwise the entire system would be in danger of collapsing."

Several cases that are now in front of the Supreme Court, and others that may appear in the near future, will soon indicate how independent the judiciary is willing to be. The Supreme Court's verdict on a few of these cases may also set the tone for Pakistani politics in the near term.

This weekend, opposition parties announced their plans to file a constitutional petition against Musharraf to challenge both his right to simultaneously hold his Army post while seeking the presidency and the constitutional legitimacy of his seeking a third consecutive term as president.

Exiled former prime ministers Benazir Bhutto, of the left-leaning Pakistan People's Party, and Mian Nawaz Sharif, of the nationalist Pakistan Muslim League, are also planning to petition the Supreme Court to guarantee their safe return to the country to run against Musharraf in presidential elections this fall.

A disastrous judicial history

When it comes to dealing with military dictators like Musharraf, Pakistan's judiciary has a half century history of rulings that have tilted the political power dynamics in favor of the military.

The Supreme Court has legitimized military rule three times since independence – in 1958, 1977, and finally in 1999 when Musharraf seized control. In 1958, the court used a legal device known as the "doctrine of necessity," which is essentially a legal lifeline for the Constitution to guarantee the document's survival in the face of extraconstitutional regime changes.

But as a result of the Supreme Court's repeated acquiescence to the executive, it has been generally perceived as subservient to the Pakistani Army.

"In the past we had always talked of the military-judiciary-mullah troika," says Ms. Jahangir. But it was Pervez Musharraf, says Jahangir, who became the first military ruler to attempt to remove a chief justice and establish his supremacy over the very institution that has legitimized Army rule in the past.

But the judiciary seems to have drawn the line when its own power came in to question, and reinstated the chief justice by a vote of 10 to 3. "Now, for the first time we are seeing cracks in this relationship," says Jahangir.

Pakistanis await "historic decision"

Most Pakistanis were prepared for a celebration on Friday. In the days leading up to the verdict, Acting Chief Justice Khalil ur Rahman Ramday had hinted at a "historic decision," which many interpreted as a decision in favor of the chief justice. Still, some were worried that the Supreme Court would once again, as it has been known to do for decades, strike a deal with the executive and dilute its decision.

"Till this eve of the judgment the government was quite confident they would get a decision they could live with," says Najam Sethi, a journalist and commentator. Musharraf, he says, will have to do some serious thinking now that his government is faced with an unprecedented challenge from the judiciary. "I can't imagine he's a very happy man right now."

Most agree that the Supreme Court's decision on Friday is a historic first step toward a return to democracy.

"No institution of democracy can become independent without a struggle, and this is the first step in the struggle of the judiciary," says Mr. Sethi. "And though the pressure on the courts will continue, I expect it will find its equilibrium sooner rather than later."

In the meantime, even an apparently impartial, if not sympathetic, state institution is good enough for pro-democracy activists.

"There is a difference between the chief justice and the lawyer's movement," explains Jahangir. "The chief justice has been reinstated and that is done. But the lawyers' movement will continue, because the reason behind it remains: a dictatorial military regime that rules this country."

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