M A Niazi The possibility of an Executive-Judiciary clash was only raised because of the PPP, surprisingly for a party that prides itself on being a progressive and up-to-date party, being trapped in an outdated view of the state. Perhaps, it is more the pity that the trap has been of the PPPs own creation, reflecting the troubling lack of original thinking within the party, which has kept it free of principles, as well as the ability to adapt to circumstances. The PPP has placed its hands on the levers of the executive power, and would like the judiciary to behave as it has behaved previously, as an agency of the executive, not as the independent interpreter of the Constitution that the document itself wants it to be. It is perhaps no small irony that the PPP gave it that role, even though it wanted the judiciary to be as supportive of it as the civil bureaucracy, or rather as supportive of it as it had been of the martial law governments of Ayub Khan and then Yahya Khan. This support had been what was offered by the judiciary to the British Raj. This itself was part of a tradition going back to the pre-colonial era, when the state had had the judicial portion firmly in support of the executive. The judiciary was supposed to be lions under the throne in Bacons telling phrase. This was the position under monarchical systems. It was only under Islam, or later under democracy, that the judiciary took a separate position from the executive, and claimed the right to interpret the Constitution. Under Islam, the judiciary claimed the right to interpret the Quran and Hadith not because they had been given the right, as they had been in written Constitutions, but due to greater expertise. Under this view, the judiciary was not supposed to interpret a Constitution, so much as provide the executive the legal reasons why it could carry out a particular course of action. Of course, that meant justifying abuses of power, but that was apparently a small price to pay. By the time Pakistan got around to writing a Constitution, the tradition had been well established that the judiciary was supposed to provide legal justifications for the executive. It should not be forgotten that the servants of the state needed legal cover because they were precisely that: Servants, who needed a legal cover for their actions. It is possible to go back to the trial of Warren Hastings in the House of Lords, partisan motives though it might have had, to understand why British colonial officers felt the need for legal cover in India. However, with the coming of American influence, the need was to provide for military coups. Apart from the general need, felt by legalistic civil servants, for legal cover, military organisations are very much products of the law. There was also an independent desire, developed from struggles by the 19th century Commanders-in-Chief against the colonial civil authority, in British India, which was inherited by the Pakistan Army. The judiciary was also guardian of an important part of the British legacy, and one of the main reasons it maintained its rule: It did justice. Before the British era, there was no proper administration of justice, precisely for the reasons that were to come to the fore after partition: Reasons of state, which were often enough an excuse for the ruler or his servants to give vent to their most anti-social instincts. The judiciary wanted to go on administering the law, go on doing justice, so it fell in with the desire of the military for legitimation. Of course, since the purpose of the law was to prevent abuses of the executive authority, it has usually been the judiciary which has come into conflict with the executive. Therefore, the Supreme Court first validated an imposition of martial law in 1958, and did so continuously after that, but the 1958 martial law provided the occasion for a young politician from Sindh, Zulfikar Ali Bhutto, to observe from close quarters the convenience of having an obedient judiciary, provided of course one could get hold of the reins of power. Bhutto was first very much part of Ayub Khans system. Not just his government, where he became Foreign Minister, but also his party, the Convention Muslim League, of which he became Secretary-General. He went on to find the PPP as a socialist party, which believed in the subordination of the state, and its organs, to it. However, in the course of two more martial laws, the judiciary established that it was not subordinate to anyone, but was an independent organ of state, charged with the duty, not the right, of interpreting the Constitution. That also implies all laws under the Constitution, as well as all executive actions supposedly taken under those laws. The PPP has problems with that. Though no longer socialist, it still retains that core of belief that when it gains power, all organs must obey the party. Also, the PPP has gone through a period starting with the Zia martial law, of the judiciary being used against the PPP, starting with the hanging of Zulfikar Ali Bhutto and going on to the cases against Benazir. The presidential reference on the Bhutto case is designed not just to have that wrong morally rectified, but is also meant to be applied to the corruption cases against the President. The corruption cases appertain to the last decade of the 20th century, and were instituted by the caretaker governments succeeding PPP governments. The Supreme Court is doing its best to make the corrupt give back the proceeds of their crimes. However, in the cases which have led to the present confrontation, one element is that these are not old cases, but appertain to the present regime. Further, they involve the children of the powerful, not the powerful themselves. If the Haj scam, over which the Secretary Establishment was removed, involved the Prime Ministers son, the NICL scam not only involved the son of Habibullah Warraich, a former PPP Minister of State, but also Chaudhry Moonis Elahi, the son of Chaudhry Pervez Elahi, now the Senior Minister. Indeed, it is to this case that Chaudhry Pervezs PML-Q is supposed to have owed the impetus to join the government. Though Chaudhry Pervez is not the head of the PML-Q, Chaudhry Shujaat Hussain is, who is not just Moonis paternal uncle by relation, but is his real maternal uncle. The executive is not prepared to go to a final confrontation, because that would mean abandoning constitutionality, which is its own basis for rule. Because the judiciary has cooperated with the military in the past, it is assumed that the PPP faces the threat of a military takeover. The PPP has issues with the military, because it is a competitor for power, yet Bhuttos experience under the Ayub martial law led him to rely on the military to rule. However, the military did not come within the PPP system, and instead of bolstering its rule, maintained a separate right which it once even exercised against the PPP. The solution appears to be to follow the impulse of the people towards rule of law, which in turn means that the judiciary must be accepted as the final arbiter of the law. And such an acceptance must not be with regard to persons, no matter how highly placed they, their fathers, or their uncles, might be. The writer is a veteran journalist and founding member as well as Executive Editor of The Nation. Email: maniazi@nation.com.pk