 Is the higher judiciary in Pakistan, previously a beleaguered pillar of state, now in pursuit of vengeance rather than striking a healthy balance? On December 16, 2009 The Supreme Court of Pakistan declared the National Reconciliation Ordinance null and void. All previous cases that had been dismissed under the NRO also stood revived and all earlier letters to Swiss Courts asking for the withdrawal of cases against President Zardari were also declared unconstitutional. Since the Court's verdict the country has been mired in a tussle between the increasingly pushy judiciary and the beleaguered executive.
The tension between the executive and the judiciary once again came to a head in the issue of appointment of a new Supreme Court Justice created by the retirement of Justice Khalil ur Rahman Ramday. President Zardari had wanted to appoint the current Justice of the Lahore High Court while Chief Justice Iftikhar Chaudhry had wanted the appointment of Justice Saqib Nisar. In the midst of this controversy, Prime Minister Yousuf Raza Gilani announced in Parliament that the restoration of the Chief Justice was subject to the approval of the Parliament. Just when things were about to come to a head, President Zardari announced that he would concede to Justice Iftikhar Chaudhry's recommendation and withdraw his candidate.
In the footsteps of the Lahore Chief Justice controversy, on Friday February 19, 2010, Chief Justice Iftikhar Chaudhry issued an order to the head of the National Accountability Bureau asking him to begin implementing the verdict of the National Reconciliation Ordinance within forty-eight hours or face a pay freeze. The next day the Chairman of the National Accountability Bureau Navaid Ahsan issued a summary order for the removal of his Prosecutor General Danishwar Malik and Deputy Prosecutor Baseer Malik. Both men have been summarily removed from their posts. In the meantime, President Zardari himself gave the Ministry of Law the requisite go ahead to re-open the Swiss cases against him. A separate petition was also filed on his behalf asking the Supreme Court to consider the issue of Presidential immunity and is still pending before the Supreme Court.
The most recent tussle over the appointment of Lahore High Court Justice also serves as an inveterate reminder of the controversy through which Chief Justice Iftikhar Chaudhry himself was appointed Chief Justice of the Lahore High Court, the post he held before advancing to the Supreme Court. As Hamid Khan has pointed out in his recent book on the Constitutional and Political History of Pakistan, in the run up to the general elections of October 2002, the military government including the Governor of Punjab, Lt. Gen (retd) Khalid Maqbool, his provincial administration and the intelligence agencies made extensive plans to rig the elections in Punjab to benefit the PML(Q). Since District and Sessions Court judges would serve as District Returning Officers in these elections, the collusion of judges was crucial for the plan to succeed. The then Chief Justice of the Lahore High Court, Justice Falak Sher was asked to appoint "pliable" judges in cases where the existing judge would be non-compliant to the scheme. Many of the judges that were selected to be appointed in place of existing judges were those that Justice Falak Sher had removed from office due to corruption.
When Chief Justice Falak Sher did not comply with the requests made of him, the military government removed him from office. In his place, a "compliant" Chief Justice who would accommodate all the requests made of him by General Musharraf's administration was appointed: this was Chief Justice Iftikhar Chaudhry, a junior judge who thus got appointed as Chief Justice of the Lahore High Court. According to Hamid Khan, within a few days Chief Justice Chaudhry had reversed all the appointments that had been made by Justice Falak Sher and appointed all the judges that the military government had requested.
The recounting of this story serves several purposes. First, it serves as a reminder that there are perhaps no heroes in the sordid game of judicial politics that is currently underway. Now an anointed hero, the Iftikhar Chaudhry of years past did not balk from making the concessions that were required of him. It also illustrates the reality that the project of undoing past illegalities in the effort to produce a legitimate system in this case may be a largely futile endeavor. The scrapping of the National Reconciliation Ordinance as inherently unconstitutional has been repeatedly presented as an effort to undo the taint of illegitimacy that maligns the current government whose election was based on a pardon made by an unconstitutional ruler. If Chief Justice Iftikhar Chaudhry's own ascent to power is retraced, it becomes obvious that similar taints haunt the very Justice who has been at the center of the effort to regain the legitimacy of the country's debased political fortunes.
But regardless of Chief Justice Chaudhry's own history of moral compromises; the question that faces a country that passionately fought for the restoration of the Chief Justice today is whether the judiciary; previously a beleaguered branch of Government is now in pursuit of vengeance rather than a healthy balance. In answering this question, it is crucial to evaluate whether the politics of celebrity, personal aggrandizement and popular power have unalterably transformed a judicial figure into a political one. The mechanics of constitutional liberalism dictate that the judiciary is meant to interpret the prerogatives laid down by representative figures and insure the upholding of the Constitution. For this reason, in most liberal democracies, judges, especially those that serve on the Supreme Court, lead reclusive lives that insure that their interests do not merge with political considerations and they can thus serve as the check they are meant to be. Such was the case in the early years of Pakistan when judges of high courts judiciously lived lives away from the public eye.
Arguably, though Pakistan's fledgling judiciary and beat up, oft amended Constitution cannot ascribe to the sterile remove enjoyed in other liberal democracies; in light of the constant tumult faced by the country and the unrelenting power grabs that have defined our politics, some flexibility in the role of the judiciary is perhaps necessary. Judges in Pakistan, who have denied life terms and often deposed at the whim of military dictators and/or civilian governments, are bound to have a political identity. Yet, the necessity of having a political identity in a system where one's turf must be perpetually guarded must not be allowed to devolve into a tyranny of the judiciary where its integral role becomes secondary to its political one. It is precisely this; the unapologetic public power play involved in the recent selection of the Lahore Chief Justice that defined the current Court. Headed by a Chief Justice intoxicated with his ability to mobilize a massive political movement; the Court now stands weakened not by its inability to wield its judicial will but rather in its eagerness to dabble in politics. In doing so, it is as repugnant to the health of Pakistani democracy as military dictators and overstepping civilian governments of yore.
Pakistani newspapers are replete with accounts of the inability of ordinary Pakistanis to avail the justice system; minorities are routinely persecuted, political opponents disappear and culprits of targeted killings and murderers never see justice. In the midst of all of this; the preoccupation of the Supreme Court with political maneuvers meant to undermine an elected executive, point to a degeneration of the role of the judiciary that is just as troubling as the appointment of judges based on their potential to comply with sundry schemes for corruption. The saga of sell out leaders and invariably corrupt institutions is hardly a novel one in Pakistan; but what makes this particular one so debilitatingly tragic is that so many who marched on the streets, protested on campus and faced batons and arrests to restore the judges truly believed that this would be a new chapter in the history of Pakistan's judiciary. 
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