Iftikhar Choudharys Judicial Activism and the Pakistani state: Time for a rethink?

Iftikhar Muhammad Choudhary, the 18th Chief Justice of Pakistan, has stepped down. Choudhary Iftikhar became famous after he resisted Pervez Musharaf’s manoeuvres and manipulations with Pakistan’s constitution and for leading or becoming an iconic figure for the lawyers movement in Pakistan. The former Chief Justice of Pakistan also was known for what could be called ‘judicial activism’ and the frequent suo moto notices he issued. One notable example of Choudhary’s judicial activism was the disqualification of Pakistan’s 16th prime minister, Yusuf Raza Gilani. Gilani was forced to resign after he resisted calls to reopen corruption and graft charges Benazir Bhutto and Asif Ali Zardari.

While Choudhary’s judicial activism did restore a degree of sanity to Pakistan, it came at the expense of other institutions and created an imbalance of power among the country’s institutions. This perhaps, along with the ideational and ideological confusion that defines Pakistan, goes to the heart of the country’s problems. Weak institutionalization has led to a situation wherein Pakistan can be termed as a weak state or more accurately a weak state with praetorian, patrimonial features. This institutional morass and torpor has affected almost every dimension of Pakistan’s polity and has led to dysfunctional governance, poverty and even its foreign and security policy which has come to be dominated by the Army and its allied intelligence agencies. Apparently and on the face of it, Iftikhar Choudhary’s judicial activism was a mean to restore a semblance and patina of normalcy to the institutional fabric of Pakistan. This, besides being controversial, could only mean a short term palliative for Pakistan’s structural problems but, in the final analysis, may have even reinforced the institutional imbalance of the Pakistani state. Pakistan, to become a normal state, at peace with itself and the world at large, may not need institutional tinkering but a wholesale rejigging of its institutional superstructure and substructure.

How can this be done? A good start may be to revisit the foundational premises of Pakistan and try to build a consensus over the nature and identity of Pakistan. Contemporarily, the pulls and pressures that bedevil the state and society of Pakistan perhaps emanate from an ideological confusion. Is Pakistan a theological state? Is it a secular state? Or is it a hybrid and synthesis between the two? Various quarters in Pakistan would perhaps offer different answers to these rather existential questions. However, a consensus answer would be that it is a Muslim state. This would be accurate and it would be almost impossible for Pakistan to be become a liberal democratic, secular state. Prudence then dictates that Pakistan conform and correspond to its Muslim identity but arrive at a consensus on the nature of this state. This may mean integrating modernity and Islam in both the state and society of Pakistan.(Hoping that Pakistan becomes a pure liberal state(if there is one in the world) is fantasy).

This may mean a distinct role for Islam in the state and society of Pakistan tempered and leavened by the ideas of modernity. If Pakistan succeeds in synthesizing Islam with modernity, it could serve as a model for the Islamic world and this would its very own idea and practice rather the imitating the so called Turkish model. This ideational and ideological consensus over the nature and meaning of Pakistan will not be easy and will be challenged. But for the sake of becoming a normal state and perhaps even for existential reasons, Pakistan may have no other choice. The country is going through a painful churn and an optimistic take on this may be that it is in transition and that these transition points need to be grasped by the political class in Pakistan to reorient and redirect the state to more salubrious directions.

This is a challenge that the Pakistani political class should not shy from. After arriving at a consensus on the nature and meaning of Pakistan, institutional rebuilding would be the next logical step. This would be rendered easy given that there would be a ideational consensus on the nature of Pakistan. Phoenix like Pakistan may emerge from the ashes and be a force for good at/on a range of levels- political, regional and security. The country would be doing favors to none but itself if it does embark on this exercise. If it continues with the drift that defines it contemporarily, then only gloom awaits the country. This can neither be good for the country nor for the region or the world at large given that a failed Pakistani state would pose insuperable dangers to all. It then behoves the thinking, sober political class to rethink the nature of Pakistan and restore its institutional balance. The world and even India has a stake in this. Let Pakistan be encouraged to have and hold a dialogue with itself and last but not least redeem itself in its own eyes. The consequences will only be benign – for the region, the world and above all Pakistan itself.

Views expressed are of the author and do not necessarily reflect the views of the IDSA or of the Government of India.