Exhibit B: Let’s hark back to where and how the crisis began. The Supreme Court under CJP Iftikhar Chaudhry had begun to cross the fine line between its powers to adjudicate and the executive’s need to take political and policy decisions. Courts do travel the distance from fundamentals to policy but such movement must remain the exception. Under Justice Chaudhry, it became the norm.

This is what caused the then-government of General Pervez Musharraf (retd) to try and get rid of Justice Chaudhry. The action was widely unpopular and Musharraf tucked tail and let the SC restore Justice Chaudhry. The SC, pointing to the Presidential Reference as based on mala fide, determined that it therefore did not warrant judicial scrutiny by the Supreme Judicial Council.

The restoration, a victory, should have cautioned the SC against too much adventurism. Instead, it instilled a heady feeling that everything was possible now that Musharraf had been licked. Pushed to the wall, he, however, struck on November 3.

The current crisis, which nearly cost Pakistan its new government, can be traced back to that period.

While Musharraf is gone, some of those issues, including determining the probity of the National Reconciliation Ordinance, remain. What would the restored CJP do now? The Amir of Jama’at-e Islami, Qazi Hussain Ahmed, is already expecting the CJP to deliver a judicial revolution. Would he? If he does, Pakistan will be thrown back into the vortex of another political crisis.

Exhibit C: Linked with this is the issue of the politicisation of the restored CJP. Lawyers reject this argument pointing to the outgoing CJP, Andul Hameed Dogar, as more tainted politically. True that, but it misses the point about Justice Chaudhry. The struggle that was waged was essentially political; neither can law be divorced from politics in any Dworkinian sense. Yet, the issue of being on the bench becomes a legitimate concern when a judge, having been in the middle of a political campaign, has to adjudicate cases where people expect, almost demand, a certain kind of verdict — rather than what can or cannot be determined by the court through accepted procedures of law.

... contd.