Despite the fact that speculations were making the rounds in Islamabad of late about the predicted judgment of the Supreme Court, it will be an understatement to say that the general society has been shocked by the ruling. All of us, the civil society was sailing high and content in the assumption that the battle of the judiciary had been won by the lawyers. The street battles, the revolution, the turning point required just the black coats and ties and their charged sloganeering. I wrote somewhere earlier that great storms await the judiciary. The reinstatement of the CJ was a case decided by the “brothers” in office, of the aggrieved party. Nawaz Sharif case, despite ending on a note that wouldn’t have been expected before 9th March, was not anything of a whopper compared to the dual offices case in question. None of the cases mentioned above barring the latter, challenged the very foundations of the state. Rana Bhagwandas noted in one of his comments in the recent proceedings that the judgment would chalk out the political future of Pakistan.
Keeping the respect of the higher judiciary in mind but also realizing that a Supreme Court verdict is public property, I would like to say that the actual Doctrine of Necessity may very well have been buried, but another Doctrine defining the compulsions of a judiciary dreading the prospects of serious confrontation with the executive and the ensuing consequences of an emergency or a worse situation, has been borne today. Going by the speculations and from what is almost apparent, the judiciary chose expediency over constitutionalism to keep back from an open declaration of war, at least fro the time being. It may be a strategy to read the tides before jumping into a hot fray and with Justice (retd) Wajihuddin’s and possibly PPPP’s cases lined up against an expected approval of General Musharraf’s nomination papers for the presidential elections, the Supreme Court can afford to defer a substantial ruling on the issue till the time some lions have been tamed.
For the government which is rejoicing, it may be a little too early. Musharraf has not been given a green signal by the ruling and if one analysis the court proceedings in their entirety and not just the ruling, some of the observations made by the court are noteworthy. It observed in a 17th September press release that the exclusion of Article 63 was not Musharraf specific and applied to all government servants. In that case, with Dr Anwar-ul Haq being barred from contesting the presidential elections, a simplistic conclusion would render General Musharraf ineligible as well. This observation further validates the argument elaborated above, that inspite of being clear about the dual office question, the court has tactically or overburdened by compulsion, postponed a clear verdict on this issue. The two weeks long deliberation as many jurists put it was unnecessary if the petitions were to be declared not maintainable, may provide some key points and observations to strengthen the case against dual office, once it appears again in the courts.
All is still not lost. The lawyers played it very well to field a candidate who could appeal to the courts as an aggrieved party. As Justice (retd) Wajihuddin Ahmad put it, skirmishes and battles are part of war. The people of Pakistan should brace themselves for another front; let this be a mere tactical retreat.