Successive chief justices have now left the system arguably worse than what they inherited.
Karachi: Eras and institutional decades can seem contrived and imposed ex post, a too-convenient way of explaining the past and divining the future.
Sometimes, though, they are helpful shorthand that tease out inflection points and bracket phases.
With two new chiefs in two months in two institutions, a subtle shift in eras may be upon us in the Army and the Supreme Court — a shift into and away from two pivotal figures in the two institutions.
Bajwa is the first chief of the Zia era — the first army chief to have joined the military, in 1980, after the Zia coup. Chief Justice Nisar will be, nearly, the last chief justice from the Iftikhar Chaudhry era.
(Two more judges, Asif Khosa and Gulzar Ahmed, will be future chief justices who were installed in the Supreme Court when Iftikhar Chaudhry was still chief justice.)
Change, surely, is upon Pakistan. Because his shadow is receding quicker, it’s easier to start with Chaudhry. This much is clear: If Chaudhry had been around, this Panama Papers and London flats business would not have tied his court in knots.
A slashing, smashing, alarming judgement would have been handed down in double-quick time and, depending on his whims and the partialities involved, the PML(N) would either hastily be searching for a new PM or crowing about court-authored vindication.
Where the incumbent has seemed uncertain and, at times, flummoxed, Chaudhry would likely have seized history and assumed centrestage with relish.
Where the incumbent has seemed satisfied with averting a political crisis by pre-empting the Pakistan Tehreek-e-Insaf Islamabad lockdown, a Chaudhry intervention on November 1 would merely have been a prelude to a marvellous, fantastical Chaudhry-esque storm.
Chaudhry was bad for the system. But his successors, in trying to bring balance back after years of judicial hyperactivism, have overcompensated. Gone is the Chaudhry substance — which is a good thing — and gone too is the Chaudhry flavour, which isn’t such a good thing.
So the incumbent thought it a good idea to get mixed up in a political/legal dispute, but then didn’t have the gumption or backing to impose his will — leaving the court a little less elevated and a little more irrelevant.
Jurists and experts can argue over what else could have been done. For our purposes, what’s important is the reassertion of the old order, a perceptual gap between how Chaudhry saw the court and how most of his predecessors did and, now, successors do.
The traditional court — and we must slot the next few successors in this mould until they prove otherwise — is protective of the institution. It is a court above the hoi polloi; a paternalistic, benevolent institution that dispenses justice and is, theoretically, for the people, but never among them.
Chaudhry was of the katchery mould, a freewheeler alert to both what works with the people and what he could get away with. The trappings and solemnities of office surely mattered, but only to the extent that they projected power and demanded obedience.
The rest was made up as occasion demanded and he desired. It was terrible — but important in one undeniable way: he made the court a player again. In the institutional scheme of things, in the system of checks and balances, the court was emphatically relevant again.
Chaudhry did it in three ways: his own celebrity, which he was more than thrilled by; his populism, which allowed him to ride roughshod over tradition and legal precedent (remember sugar prices and the Steel Mills sale?); and by forcing a consensus on his court.
His successors — repulsed, for reasons good and bad, by the Chaudhry template — have walked back all three practices.
But they’ve replaced it with a nothingness: a court above the hoi polloi and therefore with no populist support; and a court unable to be relevant, even in a disruptive way, to the institutional order and a checks-and-balances scheme.
Successive chief justices have now left the system arguably worse than what they inherited. In his last days, Mulk got involved in the election rigging allegations — but extracted no electoral, democratic or institutional gains as a result.
Now, the incumbent couldn’t resist a shot at immortality — or infamy — and ended up disappointing everyone. The next in line, CJ Nisar, will inherit a system that has wiped out all the gains and losses of Chaudhry — and will be poorer and richer for it.
Good luck to him.
On to Bajwa. He actually is a triple first. First chief born in the ’60s — 1960 — and therefore first chief born after the first coup.
First chief commissioned in the Zia era — in 1980 — and therefore first chief who lived none of the culture before. And first chief wholly and entirely with a senior — brigadier plus — career rooted in post-9/11 and post-2004, when the boys waded into Fata.
Those are seismic changes in the history of the country and the institution. It’s possible the epochs may cancel themselves out: the last decade of militancy countering the lessons of Zia. Or it’s possible the memory of the ’90s transition to democracy may burn stronger than the post-2008 version.
But the beginning of an era it surely is. Because in a chief or two, we’ll be slipping into the longest era of all: the Children of Zia.
That is, the ones who only know of life since the greatest social experiment in our great, miserable history.
Good luck to all of us.
By arrangement with Dawn