Pakistan's Courts By Paula Newberg
The Huffington Post, October 1, 2007
On Friday, Pakistan's Supreme Court ruled to allow Gen. Pervez Musharaff's bid to run for another term. "The President respects and honors the judgment of the Supreme Court," said Musharaff's spokesman, continuing with unintended irony, "as always."
If only this were true. This is a president who sacked Chief Justice Iftikhar Chaudhry last spring when the Court's docket challenged government prerogatives, and was then forced to reinstate him after lawyers took to the streets and a judicial council overruled the General. The Court subsequently ruled that former Prime Minister Mian Nawaz Sharif had the right to return from exile, but Musharaff unceremoniously deported him before he entered the country. Opposition politicians then petitioned to deny Musharaff a chance to run for another term. This time, they lost.
Pakistan's judiciary is once again at the center of a fight for the country's political future. For a few short months this year, it looked like the Supreme Court might succeed where Pakistan's pliant politicians and faltering parliaments have failed -- by interjecting constitutional principles into a fractious political environment that breeds opportunism more than good sense.
After eight years of Musharaff's rule -- long on authority, short on democracy, contemptuous of the daily maelstrom that others call politics -- Pakistan's lawyers and civic activists began to vest their hopes in a judiciary whose docket, demeanor and judgments might pave a path toward its own independence. But as the Supreme Court Bar Association president noted after Friday's ruling, "we still have a long way to go."
What does it mean for the courts to be independent? This list of requirements is familiar around the world: no interference in judicial appointments or the content or conduct of trials, no harassment of judges and lawyers, no constraints on the structure of functioning of courts or constitutions. Clear -- yes. Straightforward? Not in Pakistan.
Where the rule of law is uncertain, the role of the courts is, too. And in Pakistan, uncertainty has ruled for 60 years. Decades of military dominance have eviscerated parliaments and diluted, abrogated and negated Pakistan's constitutions. Military courts have often replaced civil tribunals. Past dictators removed judges, forced them to pledge loyalty to leaders rather than the constitution, and often placed them under extraordinary duress.
When Musharaff's own legal advisor, Sharifuddin Pirzada, was Attorney General under General Zia ul Haq in the 1980s, he continued to argue cases for private clients before judges over whom he had the power to hire and fire. Some judges, of course, have chosen patronage over principle; some have ruled to hang politicians. But many have labored, often without success, to temper the extremes of a fragile political system that can easily implode under the weight of its contradictions.
The more Pakistan's leaders have blurred the lines between military and civilian rule, and presidential and parliamentary politics, the more troubling the role of these unsung heroes has become. Every time the army has seized power, the courts have validated its actions, bowing to prudence -- or as early judgments called it, "necessity" -- to legitimate dictatorship in the name of caution and stability. On rare occasion, it has reversed itself, but only retrospectively, and sadly, temporarily.
More often, the courts have filled the gaping holes created by Pakistan's fragmented and incomplete political system -- a symptom of political manipulation far more than judicial independence. Imprisoned opposition leaders have traditionally sought recourse from the courts. But just as overweening executives have used the courts to enforce their will, so politicians have sought judicial cover for policy on everything from fundamental to rights to business decisions. Balancing unpalatable extremes, however, is a high-wire act, not justice.
Take Friday's ruling. Opposition lawyers contended that allowing Musharaff to run again was tantamount to justifying his unconstitutional appropriation of power in 1999 -- something the Court had indeed done then. But Justice Javed Iqbal noted, quite rightly, that the parliament -- compliant, if restive -- had also legitimated the coup d'etat. So the Court rested its decision on technical grounds -- who has the right to contest what -- rather than on the contentious constitutional problems that plague the state.
Point, counterpoint: there's certainly enough blame to go around. Surely, judicial prudence is as much at fault as the political conditions that have so often forced the hands of judges. From Pakistan's early years, its judge's memoirs -- even more than their judgments -- have testified to the dangers of constitutional manipulations, the vagaries of power, and the awkward role that courts play when rules, not law, run the state. Passing the buck back to an unrepresentative parliament that plays games by army rules, however, has never worked, and won't work now.
Voters want more -- from the courts, the government and themselves. They want judges to rule in favor of something they believe is democracy, as a proxy for the fundamental rights that Pakistan's governments have rarely come close to protecting.
Contradicting the government will not, by itself, make the courts free, and certainly won't deliver justice. For that to happen, the country must agree to abide by court decisions. That's where Musharaff has gone wrong: not only by firing judges, but also by disregarding their judgments.
By so doing, he has given license to everyone else to do the same. Lawyers are back on the streets, the police are back to beating them, and the order that General Musharaff craves (and promises to his American allies) has, once again, dissolved.
According to the Supreme Court, Musharaff can now run for president -- again. He has given himself the right to decide whether to remain army chief -- again. Whether he can continue to run the country will depend on how much respect he gives to constitutionalism -- and the courts that guard it.
Paula Newberg has covered Pakistan for almost thirty years, and is the author of Judging the State: Courts and Constitutional Politics in Pakistan.