The Prime Minister stood respectfully before the Supreme Court Bench, resplendent in their judicial robes behind the high table. A hushed silence prevailed in the packed court room as a nation waited with bated breath. These symbols of the majesty of law were given substance and the newly won institutional strength of the Constitution was affirmed, when the verdict was announced: The Prime Minister whatever his compulsions, in his earlier refusal to implement the order of the Supreme Court to write a letter reopening a corruption case against the President in a Swiss Court, was held guilty of contempt of court. The Prime Minister by his defiance of a specific order had challenged the authority of the Supreme Court. In convicting him and then restricting the punishment to thirty seven seconds (till adjournment), the Supreme Court not only dispensed justice but maintained the balance essential to it, by taking account of “mitigating circumstances”. At the same time the authority of the Supreme Court and its jurisdiction within the institutional framework of the Constitution was established without destabilizing the governance structure that a prison sentence and immediate disqualification of the Prime Minister would have entailed. Let us briefly outline a perspective of political economy to understand the significance of the Supreme Court verdict.
Over the last five years there has been intensified institutional instability as different organs of the state have been vying for enhanced space within the power structure. In Pakistan’s case underlying the formal institutional structure of the Constitution is a continual contention between different factions of the ruling elite for power and resources. This contention between the military, bureaucracy, the judiciary and various political organizations and their relative strength, have conditioned the dialectic between authoritarianism and democracy in Pakistan’s history. Thus the relative weakness of political parties, judiciary and civil society organizations in the face of a relatively strong military organization, led to repeated military coup d’etats: the Constitution was abrogated, mauled and modified to suit the requirements of authoritarian rule. The judiciary for many years used the fig leaf of the “law of necessity” to give a dubious legal justification for dictatorship. So the verdicts of the Supreme Court have historically been determined by its institutional weakness rather than the robustness of legal argument. This propensity resulted in a tragic miscarriage of justice when Prime Minister Zulfiqar Ali Bhutto was hanged following a Supreme Court verdict in April 1979. The military regimes of Generals Ayub Khan, Yahya Khan, Zia ul Haq and Musharraf all found legal sustenance in a kept judiciary.
The changing configuration of the power structure has also shaped the nature of and changes in economic and foreign policy. The national security paradigm as formulated by the military critically influenced a foreign and security policy that involved the nurturing of extremist militant groups that were later to become a threat to the very survival of the state and the way of life of the people of Pakistan. The same security paradigm led to policies that reinforced an extractive institutional structure in the economy, whereby growing rents were generated for the elite, with the lion’s share for the military, while the provision of health, education and economic well being of the people was ignored in resource allocation decisions.
Over the last five years the judiciary, earlier removed by General Musharraf, was restored by a historic Citizens' movement, and its independence acknowledged through a popular consensus. During the same period there has been a dramatic contention for power between the elected government and the military (the memo gate affair is an example), and the assertion of judicial independence vis a vis the elected government on the one hand and the military on the other. This turbulence within the power structure is moving towards a new institutional balance as envisaged in the Constitution. If the political parties now use the April 26 Supreme Court verdict as an instrument of political conflict either with the judiciary or each other it could place dangerous stresses on an emerging democracy and a fragile state. Strengthening the polity requires restraining political conflicts within the consensus for democracy and its institutional stability.