Legal shenanigans are mere means to augment real locus of power

To the real locus of power, the whole set of legal shenanigans and multiple juristic interpretations appear trifling, as trifling as the statement that a four-footed animal is an animal. As actual power always derives from barrel of the gun. The traditional nature of perennial power always remains unchanged. Next to enjoying itself, the next greatest pleasure of dominant power source consists in preventing other pygmy sources of power from enjoying real taste of power, or, more generally in the acquisition of absolute power. But for creating suspense and thrill in the monotonous soap opera, so-called giant sources of power are embedded with opportunity to manifest power so that for the time being attention can be diverted from the customary chain of events. But at the end, it’s actual fountain of power that ultimately comes out victorious.

Without mincing words, Pakistan’s political and constitutional development since 1947 has been fraught with civil-military conflict. Evidently this conflict has been conjured up as a conflict between political actors and the military. Ironically, it’s often said that judiciary has been the alleged ‘B team’ of the military. In other words, the judicial-military conflict has been espied more as a quirk and less as a norm. Faisal Siddiqui, an eminent lawyer, is right when he says that in post-1971 Pakistan, adult franchise democracy and the 1973 Constitution paved the way for a fundamental structural contradiction between the roles of the judiciary and military.

Structural contradiction in a sense that, on one side, with the protection of democracy and constitutionalism, judiciary was imbued with the scent of tremendous power; on the other, the de facto power of military elite was fundamentally intimidated by both democracy and democratic constitutionalism. That brought structural contradiction into open between these state institutions. But this contradiction coexisted with the inherent weakness of a judiciary having no coercive power to protect itself or implement its decisions. Resultantly the judicial paradox of both continuing collusion and emergent dissent with the military elite saw the light of the day.

Nawaz disqualification at the hands of Hon’ble Court further strengthened the thesis that powerful state institutions were allegedly helping out Imran to become PM. The noise of ‘selected’ became louder with the each passing day. A full-fledged Dharna was staged to dethrone the government but no avail.

Now the question is what happened in past three days. All but nothing short of a constitutional crisis in terms of cliffhanger hearing on extension of Gen. Bajwa’s tenure that culminated with much-anticipated judgment of retaining COAS for another six months during which the parliament will legislate on the extension/reappointment of an army chief. Quoting the words of Hon’ble CJ Khosa himself: “Government has turned the army chief into shuttlecock.” Even the past three days were so much uncertain, and rightly on account of government’s gross negligence, that screwed up minds were compelled to raise such silly questions like if fuss in the name of legal intricacies to create constitutional crisis is end then what’s the need of this constitution as a mean? In simple words, why the tenure of army chief has been morphed into a hubbub particularly when army cannot be left without command in wake of critical regional situation?

Rightly or wrongly, beware the sword of contempt of court, please allow the author to say this with heavy heart: Had this judicial proceeding been off-camera, the COAS tenure would not have been the hot potato in the venomous Indian media galleries. And what’s the outcome of that protracted 3-day hearing? Nothing but no more different from the scenario had this legal petition not been fixed for hearing before the august Supreme Court. That’s army chief was no longer removed from his post plus our independent judiciary could make both the government and the most powerful person accountable in response to PM’s jeer of “correction of perception of powerful”. Next time, if better sense prevails in him, PM will be more careful to issue such irresponsible statements against judiciary. Maybe the victory of judicial paradox in words of Faisal Siddiqui. Maybe a perfect win-win in which one powerful organ flexes its muscles against another powerful organ without harming each other.

Forget about legal; let’s discuss the political implications of this short order. Since July 2018, there has been a perception that with the robust but clandestine military backing, PTI came into power. Nawaz disqualification at the hands of Hon’ble Court further strengthened the thesis that powerful state institutions were allegedly helping out Imran to become PM. The noise of ‘selected’ became louder with the each passing day. A full-fledged Dharna was staged to dethrone the government but no avail.

The ‘adroit’ ministers of government were also vivacious in chanting the mantra: “Opposition can do nothing as all institutions are on one page to support the government.” In essence, this tainted perception was debasing the credibility of institutions. But due to colossal clumsiness, there was no serious effort on part of ruling party to rectify itself. The support of the system became less so that ruling party might mend it ways. There is nothing wrong with the Bajwa-Imran duo in wake of growing foreign policy challenges but again ‘one page’ should not be a refuge for government to hide itself in face of bad-governance and growing price hike. Hence with the sheer decline of government’s soft power, institutions cannot afford to sail with the government in the same boat.

In sum, Hon’ble CJ Khosa’s judgment in COAS appointment notification case re-establishes the check and balance system in tri-cameral constitutional scheme. As a consequence, COAS Bajwa’s extension will now get Parliament stamp in coming days instead of singular Imran stamp on the basis of “you scratch my back, I scratch yours” premise—negating the impression that Imran is due to Bajwa and Bajwa gets extension due to Imran. In post-2009 phase, Court is much more independent and can even make the most powerful personality accountable without disturbing the traditional power paradigm in the country. For government, it was a warning shot—don’t raise frivolous claims about institutions and mind your own business. And last but not the least, for liberal-fascist midgets who have inherent bias against military and who were keen to witness institutional clash there is also a lesson: Say no to chaos.

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