LAHORE - Is the judiciary really as strong and independent as it appears to be? And has the army really made itself subservient to the government, leaving its former boss Gen Pervez Musharraf to the mercy of law and circumstances?  Is the army monitoring the situation to retaliate at an appropriate time?

These are the questions people discuss these days and are trying to find answers to. While the conduct of the judiciary over the past several decades has not been enviable, it has witnessed a transformation since the day Chief Justice Iftikhar Muhammad Chaudhry resisted then president and army chief Gen Musharraf’s pressure to resign.

Now the judges feel emboldened and they take all decisions the way they like. They want to do justice ‘even if the heavens fall’ and have little care how mighty and influential the respondents in a case are. The continuous silence of Army Chief Gen Kayani encourages the judiciary to follow the same course. Many believe that because of the international situation the army is too busy in the defence-related matters and is not in a position to take any step against the system at present and in the foreseeable future.  But will the situation remain unchanged even after the retirement of Gen Kayani and Chief Justice Iftikhar Chaudhry in the last quarter of the current year? Will the successor of Justice Chaudhry be as brave and the replacement of Gen Kayani as cool headed? And what if the successors of the general and the top judge adopt policies different from the ones being pursued at present?

These questions are a matter of serious concern to everyone.

In case their successors have a different mindset, the political scene may change. Therefore, it is better that no mistake is made about the thinking of the army. In the past, the army has always reigned supreme and the judiciary has been obeying the orders of the generals in power.

In Gen Zia’s rule, the conduct of the most of the judges was simply regrettable, to say the least. It was the apex court which had validated his takeover and given him the power to amend the Constitution. The general did not hold the elections for several years despite his commitment, and when he did, he held them on a non-party basis, something which was alien to the Constitution. True that some judges had refused to take the oath under the then PCO and some others were not asked to take the oath, as a result of which many had to take off the robes. But those who ‘survived’ gave no opportunity to the general for a complaint. They were compliant in the true sense of the word.

The general did not face any legal or constitutional problem at the hands of the judiciary. And had he not died in an air crash, he could, perhaps, have been in power even today, with the judiciary playing into his hands.

The way the judiciary hanged ZA Bhutto to facilitate the general to stay in the driving seat and the embarrassment the judges face now when they are accused of having committed judicial murder of the PPP’s founding chairman is quite well known.

The kind of protocol various judges used to accord to people like Sharifuddin Pirzada was much below their dignity.

Their ‘bravery’ was also exposed when a petition against the dismissal of the Junejo government was decided by the Supreme Court. The bench had decided to restore Mr Junejo as prime minister and arrangements were being made to announce the verdict. It was at this juncture that then army chief Gen Aslam Beg sent a special message to the apex court barring them from restoring the Junejo government.  The honourable court did as it was told to do.

Much later, when Gen Beg admitted that he had sent a message to the court to forestall the reinstatement of the government, he was issued a contempt notice. But as the general said the same even in courtroom, the bench was left with no option but to retreat. The general was not punished for doing what he confessed to have done.

The judicial activism was also nowhere to be seen when Gen Musharraf toppled the government of Mian Nawaz Sharif. The court found justifications to legitimise the intervention. The military leader was, quite generously, given the power to amend the Constitution and complete his agenda in three years. The general, through a referendum, became the president and also retained his military uniform for many years and honourable judges saw nothing unconstitutional in a military man aggrandizing himself to the highest office of the state.

How much ‘constitutionalist’ are our judges was also seen when Justice Chaudhry was sacked in 2007. Justice Abdul Hameed Dogar was there to fill the void. And he was not alone. Dozens of other judges were also there to perform judicial functions – and they did perform till the situation took another turn with the restoration of the sacked judges. This is not an old story. This happened only a few years ago.

Now, let us see the conduct of the army.

Then army chief Gen Jehangir Karamt delivered a lecture at the Naval War College in 1998 in Lahore.

He proposed the formation of a national security council and strongly criticised the accountability process going on at the time. Mian Nawaz Sharif as prime minister forced him to resign for overstepping his jurisdiction. There was serious resentment among the army because their chief had been humiliated.

The PML-N government tried to trivialise the matter when the information minister told reporters in Lahore that it was a routine affair. But the writer (who was then working for Dawn) told the minister that he was oversimplifying the matter. In Pakistan the sacking of a prime minister at the hands of an army chief may be a routine, not vice versa.

After only a year the PML-N government was overthrown and yet another year later the Sharif family was banished to Saudi Arabia.

The scores had been settled.

If the past precedent is something to go by, nobody should make a mistake while assessing the army’s mood. Gen Kayani may have used some coolant which has changed his temperament. But his successor may not be as ‘soft’.

While performing its functions the judiciary should not do anything which provokes the army. The democratic system is too fragile to suffer another setback. Nobody should forget that overgrown nails are cut off.