Judicial overreach threatens to further destabilise the fragile democratic project in Pakistan
Pervez Musharraf played so fast and loose with democratic principles during his tenure as Pakistans army chief and president that it has become a satisfying sport to count the ironies as his attempts to enter the electoral fray,and now just roam as a free man,are thwarted. Nobody ever accused Musharraf of self-effacement,and the impulse to cheer the unfolding spectacle as a dictator getting his comeuppance is understandable. It is also dangerous. Certainly,Musharraf has a lot to answer for,given the arbitrariness that shaped his acts while in power. But the overreach of Pakistans judiciary in ordering his arrest and in giving the Election Commission inordinate latitude in rejecting his nomination papers,puts in full glare a vital challenge to the rule of law as Pakistan prepares for its first transition from one elected government to another.
The drama in and outside the Islamabad High Court is of a piece with the attitude of the judiciary during the tenure of Iftikhar Muhammad Chaudhry as chief justice of the Supreme Court. Chaudhry was himself a victim of Musharrafs disdain for due process when he was sacked from the post in 2007. The popular movement to have him restored to the highest judicial office,in fact,hastened Musharrafs exit a year later. However,as the country came under representative rule,with Asif Ali Zardaris Pakistan Peoples Party at the helm,the Chaudhry judiciary displayed a firm inclination to challenge executive power. Now,in the campaign period,its hand remains all too visible. Election officials have gained licence to scrutinise nomination papers of candidates for adherence to Articles 62 and 63 of the constitution. This allows election officials to put candidates to the test of patriotism,religiosity and integrity,a test that by its very nature gives the official in question immense discretion. It has the potential to distort the choice before voters. It is important to note that Musharraf,who is not quite an electoral force anyway,is not the only candidate to have been affected. In fact,there are candidates whose papers have been rejected in one constituency and accepted in another.
Pakistans democracy is often,and correctly,portrayed as a work in progress in correcting the imbalance between the powers of the military and the civilian government. To the democracy project must now be added the need to address judicial overreach. Because for the rule of law to flourish,there needs be not just a strict separation of powers,but also the absence of confrontational intent from the courts.