Philip Oldenburg
The political landscape of Pakistan has always had a prominent place for its judiciary, and particularly the Supreme Court.1 The emergence of a judicially active court led by Chief Justice Iftikhar Muhammad Chaudhry and then the exhilarating 2007–2009 Lawyers’ Movement seemed to mark a watershed in the Supreme Court’s role, from junior partner to the military and bureaucracy in times of crisis, to an institution autonomously exercising power. Indeed, it can be argued that “had it not been for the revival of the rule of law and for a mechanism to enforce constitutional limits on power abuse by elected officials [in 2008–2013], democracy would not have survived in Pakistan.”2 These developments conjured up the image of a rule of law directed by a judiciary of integrity and vision, supported by a large and vigorous segment of civil society, the lawyers. The lawyers have since lost their heroic image, and the Supreme Court, after the retirement of Chief Justice Chaudhry in December 2013, has not asserted itself in the way it had. It has continued to claim the political high ground, but it is unclear whether it would favor a “juristocratic” democracy.3
Pakistan has what some label a “partial” democracy, or a “hybrid” regime, that oscillates between an autocracy, when the military is openly in power, and a flawed democracy, when relatively free and fair elections occur, forcible suppression of dissent declines, but the military retains control over significant parts of the state. On the whole, in the country’s history, the judiciary has played the role of a rubber-stamp institution legitimizing military-bureaucratic rule.
Institutions of that hybrid regime such as Parliament and political parties are weak. Policies and programs and laws are not conceived and written in Parliament and provincial legislative assemblies; rather, that has been done mainly by a handful of insiders in the offices of the ruling political party’s leader. A major exception, though, and perhaps a sign of the changing times, was the bargaining that produced a unanimous vote in favor of the Eighteenth Amendment in 2010, which was conducted across party lines, in committees. Most political parties have organizations that are hardly active between elections or episodic street mobilizations; none have a leadership selection process that avoids personalistic choices. In recent decades, none of the major political leaders have demonstrated a taste or capacity for statesmanship, as opposed to skills of jockeying for power.
Civil society also seems bereft of either great leaders or organized social movements capable of changing the regime’s character. The media—first print and now television and the Internet—have been allowed to develop significant independence and influence in the last thirty years. Some parts of the media have been able to put a small dent in the government’s general unaccountability, and a succession of flawed elections in the 1990s also did a bit.
In this context, the Lawyers’ Movement, which Sattar calls the “rule-of law” movement,4 has brought a new possibility to the fore: that the initiative for establishing the rule of law in a revived democracy in Pakistan would come from the judiciary. Some members of the judiciary, and particularly Chief Justice Chaudhry, seemed to think that the judiciary—essentially the Supreme Court, with occasional help from High Courts—could do this from its constitutionally established position of independence and power. But to establish that position will probably require the acceptance of the higher judiciary as a more purely political force.
THE JUDICIARY AND THE EXECUTIVE BEFORE 2007—AND THE LAWYERS’ MOVEMENT
The judiciary has not had much success in preserving democratic government. As Mahmud summarizes his very detailed argument, “the successive constitutional crises that confronted the Pakistani courts were not of their own making. But the doctrinally inconsistent, judicially inappropriate, and politically timid responses fashioned by these courts ultimately undermined constitutional governance.”5 The details of the judiciary’s willingness to bend to the will of the de jure or de facto executive head of the government—starting with Governor-General Ghulam Muhammad in 1954—are enshrined in a series of major court decisions that have been carefully analyzed by scholars and lawyers.6 Mostly these conflicts have been conducted with due decorum, but in 1997, perhaps as a reflection of the general trend of declining respect for all institutions of government, the Supreme Court became a literal battleground, when political workers of Nawaz Sharif’s ruling party stormed the building to prevent the hearing of a contempt case against the prime minister. Hamid Khan says, “it was indeed one of the most despicable assaults on the courts in judicial history.”7 Finally, “the Supreme Court committed collective suicide.”8 The judiciary’s willingness to bend to political change continued. After the 1999 coup, Justice Chaudhry, whose removal eight years later became the focus of the Lawyers’ Movement, was one of the 85 percent of superior court justices who swore an oath to uphold General Musharraf’s Provisional Constitution Order (PCO) of 1999.9 In 2000, the Supreme Court followed tradition in legitimizing Musharraf’s coup.
In March 2007, there was a dramatic departure from this pattern: the Chief Justice refused to resign even when President General Musharraf, presiding publicly over a group of the most powerful men in the Pakistan government, put him under pressure to do so. After his refusal and the first wave of the Lawyers’ Movement, the Chief Justice was restored to his office by the Supreme Court in July 2007. In November 2007, when Musharraf declared a state of emergency and issued a new PCO, in a reversal of the earlier ratio, roughly two-thirds of the justices of the Supreme Court and High Courts refused to take an oath under the PCO, after which the Chief Justice was put effectively under house arrest and the lawyers’ leaders jailed.10 It was not until more than a year after the February 2008 election that the winning parties’ commitment to restore the Chief Justice to his office was fulfilled.
The crisis of the judiciary and the Lawyers’ Movement has been well described in a number of popular and scholarly writings.11 General Musharraf’s desperate attempt to retain full powers, in the quasi-coup of November 2007, and Benazir Bhutto’s assassination in December 2007, paradoxically produced a reasonably free and fair election in February 2008,12 in which the military’s decision not to interfere was crucial. After the election of May 2013, “free and fair” with some major blemishes, there was a peaceful handover of government from one party coalition to its opposition, the first in Pakistan’s history. The military has, however, retained its accustomed sphere of control over virtually all national security matters and has not relinquished its economic enterprises and positions in civilian administrative institutions.
There were five phases in this crisis, linked to each other by the figure of Chief Justice Chaudhry. The first, in which the Supreme Court under his leadership demonstrated an unusual activist bent, ended when Musharraf attempted to force Chaudhry’s resignation and then suspended him, in March 2007. In the second phase, the lawyers mobilized around the effort to get the Supreme Court to restore him, which succeeded in July. The third phase began with the political bargains struck by Musharraf with the Pakistan Peoples Party (PPP) that brought Benazir Bhutto back to Pakistan; the Supreme Court’s rulings that allowed Nawaz Sharif to return as head of the Pakistan Muslim League—Nawaz (PML-N); and the election of Musharraf to the presidency (and his final relinquishing of the office of Chief of Army Staff).
Then, apparently feeling threatened with loss of office by a possible decision of the Supreme Court, Musharraf declared a state of emergency, on November 3, 2007. This time he put all the lawyers’ leaders firmly into jail for three weeks, after which they were put under house arrest (and released by the newly elected government, only in March 2008). A PCO was promulgated, and the Chief Justice and others were replaced. But the December 27 assassination of Benazir Bhutto shifted the political landscape, and Musharraf’s allies lost the elections of February 2008.
The fourth phase began with the election of 2008, which brought the PPP to power. However, reneging on its campaign promise and agreement with the opposition PML-N to restore the “PCO judges,” the PPP broke the solidarity of the sixty-four Supreme Court and High Court judges who had stood by Chaudhry and who had refused to take the oath under the PCO; fifty-eight judges accepted reappointment without insisting on Chaudhry’s reinstatement. In the end, the issue of the restoration of judges was reduced to Chaudhry and a few other judges.13 The Lawyers’ Movement reemerged, threatening a “long march” to Islamabad to force the PPP government to fulfill its agreement. The restoration finally happened on March 16, 2009, with the decisive pressure to get it done apparently coming from Chief of Army Staff General Ashfaq Pervez Kayani.14
In the fifth phase (which ended with the retirement of Chief Justice Chaudhry in December 2013), the Supreme Court resumed the judicial activism that had apparently provoked General Musharraf in the first place.15 Major issues revolved around the National Reconciliation Ordinance (NRO), declared unconstitutional on December 19, 2009;16 a threatened confrontation with Parliament on the power to appoint judges in the Eighteenth Amendment to the Constitution some months later;17 and the revival of the NRO case in January 2012. The court forced the ouster of Prime Minister Gilani in June 2012, having held him in contempt for refusing to write a letter to the Swiss authorities asking to reinstate corruption charges against President Zardari; in November, the new prime minister, Raja Pervez Ashraf, also under the court’s pressure, wrote the letter. Less forcefully, and with less obvious results, the court confronted the military in a missing persons case and, judging the petition of Asghar Khan filed in 1996, ruled that the Chief of Army Staff and the director of the Inter-Services Intelligence (ISI) had administered an illegal fund for candidates in the 1990 election and recommended their prosecution. In this period, the Supreme Court Bar Association elected, albeit in a very close contest, Pakistan’s most prominent human rights lawyer, Asma Jahangir, to be its president for a year’s term. Other lawyers engaged in thuggish demonstrations against some judges,18 and a few gained notoriety by showering the assassin of Punjab governor Salman Taseer with rose petals in January 2011. The lawyers as an organized force have continued to lose influence. But the importance of the judiciary in supporting a continuing democracy in Pakistan seems clear: retired judges manned the Election Commission that conducted the national and provincial elections of May 2013, and three of the four provincial caretaker governments in the two months before were headed by retired judges. The Supreme Court also actively participated in running the election, issuing orders on delimitations, overseas voting, and other matters. Since Chief Justice Chaudhry’s retirement in December 2013, however, there has been a noticeable decline in the headline-worthy actions of the court.
JUDICIAL ACTIVISM
The judicial crisis of 2007 was probably triggered at least in part by Chief Justice Chaudhry’s use—or possible overuse—of the court’s suo moto powers to rule on the government’s actions. Particular cases dealt with the privatization of the Pakistan Steel Mills Corporation and the effort to force the intelligence agencies to produce “missing persons,” mainly from Baluchistan.19 Some of the “missing” persons had been turned over to the United States as part of Pakistan’s cooperation in the “war on terror,” so the court’s actions were seen by Musharraf to be a challenge to that part of his foreign policy.20 According to Ghias, “by expanding the reach of judicial power to intelligence agencies, the Chaudhry Court had gone too far. Instead of the social control over dissidents and political opponents, the Court was expanding its power by taking up the popular cause of missing persons.”21 But, as Ghias notes, “the most significant threat to the Musharraf regime came not from what the Court had done, but what it could potentially do in the October 2007 presidential election,”22 because the law required former government officials to leave their job two years before contesting. In Ghias’s view, the rumors that the court would be prepared to challenge the regime on this ground as well was decisive.
It is important to note that once the Chief Justice was restored to office, in July 2007, the court resumed its judicial activism on all these fronts. Some of these steps were far-reaching, direct challenges to Musharraf’s regime:
Because of the pressure from the Supreme Court, the regime was forced to acknowledge the detention of more missing people and to release them. In addition, Chaudhry ordered the regime to release people who were not declared missing but who were being held without trial. In order to avoid appearing before the Supreme Court, the regime even released suspected “terrorists” who had been arrested but never charged.23
Crucially, the court blocked the implementation of the NRO that Musharraf had negotiated with Benazir Bhutto after Chief Justice Chaudhry’s restoration (“in desperation” according to Ghias).24 As that negotiation was in progress, the court decided that Nawaz Sharif was entitled to return to Pakistan, voiding his “agreement” to a 10-year period of exile, and declared the government in contempt for putting him on an airplane to Saudi Arabia when he landed in Pakistan in September.
The court did not rule directly against Musharraf on the issue of the validity of his candidacy for a second term as president in an election held before his first term ended, taking advantage of the old electoral college, formed by the legislatures elected in the rigged 2002 election, rather than wait for a new electoral college to be formed after the new elections, then scheduled for December. The Lawyers’ Movement began protesting the court’s inaction, even though it had placed a stay on announcing the election results. The election that duly took place gave Musharraf his second term, but the chance that the court would rule it invalid was very real. As Ghias notes, “it was in this context that Musharraf imposed [what was in effect] martial law.”25
The new court of Musharraf-appointed judges lasted beyond the elections, because the Zardari-led PPP government refused to honor its agreement with the opposition PML-N to restore the deposed judges, who had been released in March 2008.26 So there was a gap in the court’s judicial activism, and Zardari became the revived Lawyers’ Movement target. Although the PPP had moved to impeach President Musharraf, succeeding in getting him to resign in August 2008, its refusal to restore the judges forced the PML-N to withdraw from the coalition supporting the government. Zardari—now president—and the PPP were able to secure a split in the judges supporting Chaudhry. Further demonstrations by the lawyers ultimately ended with the restoration of the Chief Justice, but only once the replacement Chief Justice reached retirement on March 16, 2009, more than a year after the election.27 The “PCO judges” were finally removed by Supreme Court order on July 31, 2009, as part of the court’s judgment that the declaration of emergency in November 2007 was unconstitutional. Ayaz Amir writes: “What had restored their lordships was not the lawyers’ movement, something that had already lost steam. They were restored by the dynamics of the political process, even the pressure mounted by Nawaz Sharif being an aspect of the same process.”28
The court soon resumed its activism, inquiring into day-to-day government and ordering administrative remedies. It continued to brandish a wide range of its suo moto initiatives, holding hearings on the violence in Karachi, in August–September 2011, for example, and investigating the so-called Memogate crisis in early 2012. The court did not hesitate to intervene when it found fault in the arrangements for the May 2013 elections.
The court has also actively pushed for judicial reform more generally, building on some well-funded initiatives of the previous decade, which in turn drew on the work of judicial commissions in the past. A series of judicial conferences—beginning with the International Judicial Conference on the fiftieth anniversary of the Supreme Court in August 2006, followed by four National Judicial Conferences between 2007 and 2011, and then international ones in 2012, 2013, and 2014—featured major Pakistani and foreign experts, with the presentation of papers, speeches, and discussions leading to recommendations for reform. The Law & Justice Commission of Pakistan produced a formal judicial policy in 2009.29
Although “judicial reform” would seem to be an obvious positive step, it is, in fact, problematic.30 The official idea, supported in the last decade by large infusions of aid from the Asian Development Bank and others, has been to improve the efficiency of the courts, through better infrastructure, better training, and increased staffing, with improvement measured in the reduction of the enormous backlog of pending cases.31 Other aspects of the system, including improved legal education, have not been touched. Although the superior judiciary has reason to see itself as highly qualified, the same is probably not true of the lower courts. Ali Dayan Hasan, writing about the Aasia Bibi case, notes in passing:
It is a sobering thought that, in contrast to the two-year training programme offered to civil servants, district judges receive barely a fortnight of orientation. These judges are meant to dispense justice without any training in judicial ethics and conduct, interpretation and application of the law, or even the basics of judgment writing. And there are complaints that they lack the staple of a proper judiciary: the capacity to dispense justice devoid of personal prejudice.32
The view from Islamabad, however, is quite rosy:
In February 2013, the National Judicial Policy Making Committee observed that after application of National Judicial Policy, the district judiciary has decided millions of cases including 95% of Old cases [cases instituted before 31 December 2008]. This performance of judiciary has enhanced the confidence of general public in judiciary as well as in the formal justice system. The Committee observed that the results of Policy are quite encouraging, the Courts have by and large achieved the targets and the shortcoming, if any, is primarily on account of persistent shortage of required number of judges and deficient infrastructure.33
But others see “judicial reform” as following from the empowerment of the citizenry, both at the grassroots level and in Parliament, which would need to reform a system where the virtual monopoly of the power to appoint and promote judges has been taken by the Supreme Court. Yet others would see a “reform” as removing or at least reducing the power of the parallel Islamic law court system that was inserted into the Constitution by Zia ul Haq’s military regime. The not insignificant constituency for that system, however, might see a “reform” as indicating the fulfillment of the promise of making Pakistan fully “Islamic,” and thus giving the shariat court system more power than it now has. The increase in judicial activism, including, in particular, the emergence of public interest litigation in the mid-1980s, and within that the now routine use of suo moto powers, is seen by some as the essence of reform but by others as the emergence of a new antidemocratic claim on political power.34 It thus remains unclear whether the existing formal legal system—particularly the superior judiciary and its attached bar associations—are the problem or the solution, when it comes to establishing a just political and social order. After all, as Siddique argues, “The pro-status-quo stance can and does indeed manifest in at times resistance and hostility to not just reforms that make the legal system simpler, transparent and more intelligible to the layperson, but also to any reforms that promote ideas of and mechanisms for professional accountability of judges and lawyers.”35
The Supreme Court has made use of its suo moto powers since at least 1990, to deal with a wide range of issues, from the famous Mukhtaran Mairape case, to the cutting down of trees along a canal in Lahore. In the use of suo moto jurisdiction, the superior courts “[free] themselves entirely from the requirements of ‘petitioners’ or ‘aggrieved persons’ and … are not bound by any procedural limitations. The objective to provide justice to all becomes the driving force of the proceedings.”36 Most significant, perhaps, is that the judges adopt an inquisitorial rather than an adversarial method, summoning government officers and others to court to answer the judges’ questions. The Chaudhry court in its use of suo moto powers was thus not exceptional; what may have changed was the vastly increased activity of the electronic media (with film clips of violent encounters, for example), which seemingly has increased the speed with which those powers are called into play.
Some have criticized the extent to which suo moto interventions have occurred,37 including the implication that the court—whose predecessor, PPP supporters feel, was guilty of the “judicial murder” of Zulifqar Ali Bhutto in 1979—is motivated as much by political antagonism as by a sense of justice.38 Although these suo moto cases do grab attention, there are not that many of them: in the 2008–2012 period, there were eighty-six, with thirty-three pending as of March 2013.39 Still, the critics argue, the court is in effect sending a signal that filing a case in the normal way and waiting in the queue for it to be decided is a second-best way of getting justice. Conversely, there are clearly some suo moto cases that have been taken up as a way for the court to consider much larger issues than resolving the immediate problem. But because the entire process of going up the ladder of courts, giving time for arguments on both sides of the issue to mature, is short-circuited by the direct access to the Supreme Court, in the form of a bench selected by the Chief Justice (who, in many of these cases, selects himself), the long-term effects of the court’s decisions are more likely to be uncertain and perhaps unfortunate.40
JUDICIAL INDEPENDENCE AND THE SEPARATION OF POWERS
Judicial activism is perhaps one way in which the judiciary has carved out a more independent role than was anticipated when the Constitution was written. But there is a firm constitutional mandate for judicial independence, requiring the insulation of the judiciary from financial or administrative dependence on the government.41 With the Al-Jehad Trust case of 1996 and the passage of the Eighteenth and Nineteenth Amendments, the Supreme Court has cemented its ability to strongly influence or even determine the appointment of the higher judiciary.42 The court can also use its power to punish for contempt of court to force the government to obey its directives.43
Judicial independence does not translate automatically into the power to act autonomously. For example, it is not clear just how the court would get its orders enforced against opposition. When the court seemed poised to declare the Eighteenth Amendment unconstitutional, Najam Sethi suggested what might happen in the extreme (and unlikely) case of an explicit government-court confrontation: “The crunch will come if and when the SC [Supreme Court] orders the army to drag the [prime minister] to court or compel him to obey the court’s orders. If the army obeys the court instead of the legally elected government as enjoined by the constitution, it will be nothing short of an unprecedented ‘judicial coup.’ If it defers to the government, the SC will have egg on its face and be stripped of all legitimacy.”44
Khaled Ahmed used no less colorful language: “And if the army removes the PPP government—it is known that it is as unhappy with the government as the Supreme Court—then it would be time for Justice Chaudhry to either take a stand against the army or eat his words and join the gallery of dishonour of his predecessors.” 45 In the event, the Supreme Court, after extensive hearings, dismissed Prime Minister Gilani (on June 19, 2012), after he had been declared in contempt of court for refusing to obey the court’s order to reopen the corruption case against President Zardari relating to his Swiss bank accounts. Gilani accepted the decision and stepped down, and a new prime minister was appointed, who at first refused to “write the letter” to the Swiss government but after being threatened with dismissal in turn did so, in October 2012.46 In February 2013, the Swiss government replied to say that the cases could not be reopened.
The court has now clearly rejected a “basic structure” argument to justify its actions vis-à-vis Parliament and Parliament’s executive.47 The language of the 1973 Constitution (clause 6 of article 239) would seem to be crystal clear: “For the removal of doubt, it is hereby declared that there is no limitation whatever on the power of the Majlis-e-Shoora (Parliament) to amend any of the provisions of the Constitution.” This would follow from the sovereignty of the people, as represented in Parliament.48 Justice Dorab Patel (who had refused to swear allegiance to Zia’s PCO in 1981), writing in the mid-1990s in his posthumously published memoir, remarks, “It is clear that the [first] Constituent Assembly did not want to alter the basic structure of a democratic Constitution by conferring legislative powers on the superior Courts.”49 This point is made in Patel’s discussion of Hakim Khan v. the Government of Pakistan (1992), in which the Supreme Court affirmed Zia ul Haq’s shifting of the Objectives Resolution from the preamble to the Constitution (where it served to guide Constitution making so that nothing in the Constitution or subsequent legislation would be in conflict with Islam) to being part of article 2(A). Patel says that this did not make the Objectives Resolution into a “supra-constitutional provision.”50
Robinson discusses decisions in 1997 and 1998 that seem contradictory, noting that “the Court has leaned both ways, at times professing a basic structure doctrine while at other times eschewing it. It has yet to be seen whether the Court will ultimately solidify or discard this doctrine.”51 In its judgment on petitions challenging the Seventeenth Amendment (2005), the five-member bench of the court, which included Justice Chaudhry, ruled:
The superior courts of this country have consistently acknowledged that while there may be a basic structure to the Constitution, and while there may also be limitations on the power of Parliament to make amendments to such basic structure, such limitations are to be exercised and enforced not by the judiciary (as in the case of conflict between a statute and Article 8), but by the body politic, i.e., the people of Pakistan. In this context, it may be noted that while Sajjad Ali Shah, C.J., observed that “there is a basic structure of the Constitution which may not be amended by Parliament,” he nowhere observes that the power to strike down offending amendments to the Constitution can be exercised by the superior judiciary.52
Maryam Khan, making reference to the same judgment, concluded that “if there were any residual doubts about whether Pakistani constitutional discourse could still accommodate the ‘basic structure doctrine,’ they were categorically put to rest in the strong language of the recent Lawyers’ Forum case.”53
Patel’s discussion, however, draws our attention to another alternative to the untrammeled sovereignty of the people as expressed in the basic structure of the Constitution: the sovereignty of Allah, which must be exercised through certain individuals or groups. It does not seem that the issue of which organ of state or set of people could legitimately determine what Allah’s sovereignty entails has been resolved.54 There was certainly significant support for some kind of formal acceptance not just a system of law compatible with traditional Islamic law but rather for a precise set of statutes—though the learned in Islam did not agree on what those would be—that should be made part of Pakistani law. With the introduction of certain features of Islamic law in 1979 and the creation of the Federal Shariat Court in 1980 by General Zia, this perspective gained an institutional foothold.55
This view of the place of Islam in the judicial system is not necessarily ideological. A version was presented by Justice A. R. Cornelius, one of Pakistan’s most esteemed judges, who served on the Supreme Court from 1953 to 1968, the last eight years as Chief Justice. Lombardi notes that “deeply frustrated by the judiciary’s inability (or unwillingness) to assert the power to protect fundamental rights, … [Cornelius] proposed the systematic Islamisation of the Pakistan legal system.”56 According to Lombardi, Cornelius believed that fundamental rights could be secured only if the people’s desire to have Pakistani law made consistent with Islamic law could be met, albeit with the judiciary acting to shape laws appropriately.57 As Martin Lau (2006) notes:
The judicial appropriation of Islam and its integration into the vocabulary of courts was a conscious process aimed not only at the fulfillment of a general desire to indigenise and Islamise the legal system after the end of colonial rule, but it was also a way of enhancing judicial power and independence. The Islamisation of law did, perhaps ironically, not only predate Zia-ul-Haq’s regime, but was used to challenge him.58
Lombardi extends the argument: Lau’s study provides evidence to support Cornelius’s hypothesis that the public would respect a liberal interpretation of Islamic law developed by judges and that this could be used to empower the judiciary vis-à-vis the executive. Indeed, it might protect natural rights not only from predatory secular powers but from illiberal and autocratic Islamic powers.59
Lombardi provocatively wonders whether democracy promotion might well turn out to require Islamization, albeit “a certain kind of islamization.”60 Maryam Khan, however, claims that the court has struck down attempts to use “Islam as the constitutional ‘grundnorm’ for a ‘basic structures doctrine.’”61 The power of the judiciary vis-à-vis the other institutions of the state thus must be based on a legitimacy that has been established politically.
THE JUDICIARY AS A POLITICAL ACTOR
The Chief Justice, by his unprecedented and courageous refusal to bow to the “necessity” of obeying the military ruler, and supported by the Lawyers’ Movement, apparently made the judiciary even more securely independent of the executive. Although the court and others speak of a “separation of powers” in the classic “executive, legislative, judicial” form, those powers do not reside in separate institutions of the state dedicated to each one.62 Rather, there now appears to be three relatively autonomous branches of the Pakistan state: Parliament (and its executive, “the government”), the military, and the judiciary.63 The sovereignty claim of the people was triumphantly revived in the largely free and fair parliamentary elections of 2008 and 2013, but the vehement opposition of the military to the “civilian control” provisions of the Kerry-Lugar-Berman Act is a vivid indication that it sees that claim as limited.64 The Supreme Court has claimed the power of judicial review not just over laws but also over constitutional amendments on procedural grounds. Its implied claim to evaluate substantive constitutionality in its interim order on the constitutionality of the Eighteenth Amendment was perhaps simply a bargaining chip; it did result in getting Parliament to meet its objections, in the Nineteenth Amendment. A different set of court rulings prompted the Twentieth Amendment in February 2012.
None of these branches of the state are fully unified, as they seek to exercise power vis-à-vis the others. They all exist at local, provincial, and central levels, with complicated relationships of supervision and accountability across and within those levels. The government of the day, supported by a sometimes shifting majority of Parliament, often has to struggle with its nominal “servants,” a bureaucracy that sees itself with a right to rule, to get things done. The military, with the army preeminent, has significant subunits, such as the ISI. The separation of the judiciary from the executive was mandated in the 1973 Constitution for four years after it came into force but was fully accomplished only in 2009 for the lower courts.65
Chief Justice Chaudhry clearly saw the judiciary as the first among equal branches of the state:
I feel privileged that the Pakistani judicial system is the strongest backer of democracy which enjoys full confidence and faith of legal fraternity, other institutions as well as public at large. In recent years, the judiciary as the third pillar of [the Pakistan] State has successfully emerged as a savior and a protector of constitutional supremacy and fundamental rights.66
In 2008, the Chief Justice seemed to present an expansive view of the power of the judiciary:
It is not the province of the courts to step into areas that are exclusively within the domain of the Executive or the Parliament. But, if these two institutions remain indifferent to the duties entrusted to them under the Constitution; or if they have acted contrary to the principles enshrined therein; or if their acts discriminate between the rich and the poor, or on religious, class, regional, or ethnic grounds; then judges are called upon by the Constitution, their oath and their office to act.67
It is hard to imagine a government so perfect that it acts entirely without discrimination; so this statement seems to give the court the right to intervene almost routinely. And the interim judgment on the Eighteenth Amendment case implies that Parliament and parliamentarians cannot be exempted from judicial scrutiny by installing a feeble and timid judiciary in the name of the sovereignty of Parliament. Both Parliament and the executive must be restrained and kept within the boundaries of the rule of law.68
It might be that the Chief Justice is using “the Executive” to refer to the president, who was at the time in fact independent of Parliament but has now, with the Eighteenth Amendment, been returned to the status of a virtually powerless (though not a “figurehead”) head of state. As it happens, President Zardari, as the head of the ruling party, was very much the de facto leader of “the Executive.” Indeed, the Lahore High Court ordered the president to relinquish his party office; a year later (in March 2013), facing a contempt charge, the president complied. The president elected after the 2013 election, Mamnoon Hussain, has no such alternate base of power. The Supreme Court’s claim to some power over the executive—prime minister and president—can be seen in its efforts to get its orders in the NRO case obeyed, despite the president’s constitutional immunity from court proceedings.
There is no indication that the military has yielded any ground to the judiciary’s attempts to bring retired army officers, let alone serving ones, into a rule of law arena presided over by the Supreme Court.69 Indeed, the indications are in the other direction—toward the army’s implicit (or perhaps behind-the-scenes) refusal to let that happen. The protection offered to General Musharraf on his return to Pakistan in April 2013 to fight the elections, which got him out of the courtroom when the judge ordered his arrest, and the veiled warnings against “humiliating” him suggest that the military has not yielded much. Among many others, the return to the back burner of the Asghar Khan case and the “missing persons” cases, in which military intelligence was implicated, indicate that when it comes to the army, the court has been frank in its strictures, but the judicial system has not produced arrests and convictions of soldiers. True, those strictures can be impressive: the Chief Justice, in open court, told the ISI and Military Intelligence: “You’re an arsonist. You have set Balochistan on fire,” and, according to a news report, “said that the agencies have become ‘insensitive’ to the issues and referred [to] them as the ‘biggest violators’ of the country’s law and order.”70
It remains to be seen whether the court can enforce its decisions against the will of Parliament or the preferences of the military. In the past, the courts have acquiesced in the seizure of power, including the power of a military dictator to rewrite the Constitution in its entirety. Although they may have at times added stipulations to their approval of a government takeover—for example, requiring General Musharraf to hold elections within three years—and though a few judges have refused to swear allegiance to a PCO, on the whole they have demonstrated their lack of power.71 The “rule of law” crisis of 2007–2009 seemed to change that, as the court, drawing on the enthusiastic and effective base of support of the lawyers in particular, strengthened its legitimacy immeasurably, in both senses of that word—that is, a great deal but in ways that are hard, if not impossible, to judge.
However, as Khaled Ahmed has pointed out, the judiciary has feet of clay,72 and the lawyers lack legitimacy:
Before Musharraf got rid of him, the Chief Justice had piled up thousands of suo moto cases which satisfied his sense of justice as the civil servants began to be routinely humiliated by him in the Court. He had no idea that an “over-correction” was going to be the result of this in the long run and that not even justice can be administered without realism. … The lawyers meanwhile have showcased the muscle they have acquired during their long marches. They thrash the police whenever they can; they have thrashed the journalists trying to show their violence on TV. … Their ability to cow the judges into submission threatens to make them a threat to society.
With its success in getting its way on the question of appointments, the Supreme Court, if not the judiciary in general, has clearly carved out a powerful constitutional space for itself and probably no longer needs the support of the lawyers.
It remains, however, very much a political actor, and not necessarily a benign one, as the eminent lawyer Muneer Malik notes: “In the long run this is a very dangerous trend. The judges are not elected representatives of the people and they are arrogating power to themselves as if they are the only sanctimonious institution in the country. All dictators fall prey to this psyche—that only we are clean, and capable of doing the right thing.”73 The other major component of the movement was indeed the lawyers—from whom all superior court judges are ultimately selected, it should not be forgotten74—and there is some question of their integrity and the value of their political role.75 Lawyers in Pakistan are not in a particularly enviable position. The various proposals for legal reform76 have included recommendations for the improvement of legal education and by implication have endorsed the idea that the vast number of practicing lawyers include both a small number of very skilled, honest, and impressive practitioners—including those who become judges of the superior courts—and a small number of corrupt and/or violent and/or incompetent lawyers who practice in (and around) the lower courts. The most vivid recent example occurred when the assassin of Punjab governor Salman Taseer was brought to court and was showered with rose petals by some lawyers.77 It is likely that those particular lawyers condoning the murder of Taseer represented only a very small minority of Pakistan’s 90,000 lawyers,78 if we can judge from the apparent enthusiasm for the rule of law expressed by the comparatively vast number of lawyers who turned out all over the country to mob Chief Justice Chaudhry’s motorcade in the first phase of the Lawyers’ Movement.79
Judging from their appearances in public, from the Lawyers’ Movement to rowdy incidents, lawyers are—more than the average—keen participants in politics. They are not, however, a major presence in the National Assembly: in the Assembly elected in 2008, lawyers comprised only twenty of the 223 Members of the National Assembly (MNAs) who noted their occupation, in one compilation.80 As an organized profession, however, they are very powerful. If enhancing the rule of law is to be the foundation for a new political movement toward a genuine democracy in Pakistan, then the mass of lawyers who were mobilized by the challenge Chief Justice Chaudhry posed to General Musharraf are unlikely to provide much help if there is no comparable crisis.
Chief Justice Chaudhry could not claim a legitimate explicitly political role, and after his retirement in December 2013, he has receded into relative obscurity, without much apparent political influence.81 He may have attracted a cohort of like-minded judges, considering the proportion of judges who refused to swear (or were barred from swearing) an oath to the PCO of 2007, compared with the proportion who did so in 1999, and it is notable that the decisions of the Supreme Court under his direction had few, if any, dissenting votes. Columnist and lawyer Saroop Ijaz, with bitter sarcasm, makes the point:
The Supreme Court is no longer just an ordinary court of law; it is a court of Justice, a modern day incarnation of the Solomonic ideal, almost a religious/mystical experience. … Great minds, we have been told, think alike. The unity of opinion among My Lords is unprecedented in legal history. Not one major instance of dissent by one judge immediately comes to mind (the sole notable exception being the Mukhtaran Mai case). Hence, the whining that My Lords restrict themselves to the letter of the law, etc. should stop and we should just be grateful for the wisdom imparted.82
Chief Justice Chaudhry’s successor, Tassaduq Hussain Jillani, inaugurating the International Judicial Conference in April 2013, made a vigorous statement in support of judicial activism.83 But the tradition that a judge must be seen to be above the political fray, which Chief Justice Chaudhry followed at the height of the Lawyers’ Movement, will continue to hold. It is hard to imagine even an activist and committed judiciary acting as the explicit political leaders of a politically powerful body of lawyers.
Some judges and lawyers, while accepting the idea of democratically empowered leaders, seem to have a very harsh view of actually existing politicians and government officials. In the words of one prominent lawyer:
The large body of ignorant and semi-educated elected representatives of questionable credentials … are least qualified to have the last word on any subject. … We do not need power hungry political leaders. The country should be run by a team of good, clean and efficient administrators … [plus] a strong, able and efficient judiciary with no clogs on its power or jurisdiction to administer justice.84
When he was president of the Sindh High Court Bar Association, Muneer Malik, later a major figure in the 2007–2009 Lawyers’ Movement, was part of a lawyers’ agitation against President General Musharraf’s Legal Framework Order of October 2002, a challenge that included a “long march” of a cavalcade of hundreds of cars converging on Islamabad from Lahore and other cities.85 In essays published in Dawn in May 2007, he clearly favors a democratic politics and casts no aspersions on the political parties.86 But in a speech to a seminar on the “separation of powers” in that same month, he notes approvingly the “oft-quoted judgment” of Justice Saleem Akhtar in the Sharaf Faridi case, which reads, “In a set-up where the Constitution is based on trichotomy of powers, the Judiciary enjoys a unique and supreme position within the framework of the Constitution as it creates balance amongst the various organs of the State and also checks the excessive and arbitrary exercise of power by the Executive and the Legislature.”87 This implied claim to legitimacy of a “juristocracy” is clearly limited.88
The delicate balance of securing judicial independence while avoiding the danger of the judiciary emerging as an unchecked force is something every political system, and particularly democracies, must attempt. As Helmke and Rosenbluth note, “If there is any concept of modern governance that enjoys more widespread admiration even than democracy, it is judicial independence.”89 But they discuss the wide differences in what might be called styles of judicial independence. They conclude, among other things, that “even in democracies with a system of separation of powers, the judiciary is only as independent as the political branches are unable to agree; and, partisan differences notwithstanding, judiciaries tend to reflect culturally dominant world views.”90 Quantitative measures of “judicial independence” are (so far) not persuasive,91 so examining carefully how judicial independence, autonomy, and power appear in a place like Pakistan is important.
In Pakistan, the formal power of the judiciary is limited by Parliament’s right to amend the Constitution, but the Supreme Court has successfully challenged Parliament on the issue of judicial appointment (and dismissal), in its threat to declare the Eighteenth Amendment unconstitutional unless it was amended to provide for the Supreme Court itself having the final say in these matters. Parliament duly passed the Nineteenth Amendment, following the court’s guidelines, and although the court has not issued its final ruling on the matter, it seems that it was satisfied.92 Feisal Naqvi defends this step:
The appointment of judges and the fundamental right of access to justice are inextricably interlinked. The judiciaries of Pakistan and India decided long ago that they could not meaningfully protect their independence without the ability to ultimately control the process of the appointment of judges. There are those who stick to a doctrinaire assertion of parliamentary superiority in this context, but overall, their ranks are few. Instead, the reaction over the past 15-odd years to the Al Jehad case (and its Indian equivalent, the AOR Association case) has largely been favourable. Given that fundamental perspective, the current decision by the Supreme Court should be seen not as a power grab but as a refusal to allow the dilution of one of the fundamental pillars of judicial independence.93
Is the judiciary, then, the institution of the state that can ultimately “save” Pakistan from its seeming political stagnation, from the danger of another military takeover, or a destabilization by Islamic extremist forces, or other dangers to the country? The journalist Eijaz Haider poses the questions that would follow:
Could the judiciary, no matter how powerful, address the problems of a country? Could law be applied in a vacuum, in disregard to the political, social and other realities? Could such narrow application of law go beyond the terms of a particular case and expand to embrace the bigger picture? In other words, should the brilliance of tactics be confused with the uncertainties that inform strategy and its patient application? … But let it be said that what the judiciary is doing, despite the judges’ honourable intentions and without any reference to the specifics, is unlikely to redound either to their advantage or that of this troubled and troubling democracy.94
Or as Osama Siddique, a law professor, puts it:
Constitutional norms and rules can only survive and thrive if the public reposes its faith and support to them. Hence the big risk in opposing the work of the Constitutional Committee in the name of judicial independence. “Judicial autocracy” and “judicial tyranny” are well understood concepts in international jurisprudence. As indeed are the “doctrine of political question,” and also the concepts of “judicial minimalism,” and “judicial restraint.” They all stem from the idea that an unaccountable judiciary can crowd out democratic space, stultify democratic evolution, have its fingers burnt and get dubbed as politically partisan.95
Lawyer and columnist Faisal Siddiqi, writing about the crisis concerning the court’s attempts to get its orders in the NRO case implemented, says: “This order signifies a possible transition from a judicially activist court to one that follows the jurisprudence of a legal empire. This new jurisprudence signifies that it is the [Supreme Court] which will determine what an honest/ameen [trustworthy, faithful, observant] democratic system should look like.”96
Let us assume that the Supreme Court’s claim to define and enforce the independence of the judiciary is, at a minimum, accepted by Parliament, even though the question of how orders of the court are to be enforced against the executive or other organs of the state is still open. This is not simply a matter of constitutional law, which is far from settled, but of political power. In effect, there are now five relatively autonomous organs of the state (whether they are usefully grouped into three “branches” with “separate powers” remains unclear): Parliament, the presidency, the judiciary, the bureaucracy, and the military. With the passage of the Twentieth Amendment in February 2012, the Election Commission may emerge as a sixth. It is worthy of note, however, that the Election Commission consists of retired judges; Mohammad Waseem calls it the “second domain of the judiciary.”97 The caretaker government, appointed in March 2013 to serve until the May election produced a new Parliament, was headed by a prime minister who is an eighty-four-year-old retired judge, and four of the five caretaker chief ministers in the provinces were also retired judges.
In order for democracy in Pakistan to be put on a firm footing, in my view, the tug-of-war between the Parliament and the presidency on the one side and the bureaucracy and the military on the other has to be “won” by the former.98 The referee of this struggle would ordinarily be the judiciary, but the judiciary has clearly succumbed to the temptation to join in the struggle as a participant. For example, Chief Justice Chaudhry, in the course of the suo moto hearings on the violence in Karachi, remarked: “Those who impose martial law begin by saying ‘my dear country men’ and then play havoc with the country. Whenever martial law was imposed the deteriorating law and order situation was made its basis. We have blocked the way. We have to improve the law and order situation on our own.”99 Organizations of civil society—such as the lawyers organized into bar associations—act as supporters in reserve.
There are also, of course, informal divisions within each of the major players. If everyone in a given institution pulls in the same direction, as it were—agreeing on policy and tactics—the more institutions are aligned with each other, the greater the strength of that “team.” If government and opposition are united—when it comes to controlling the bureaucracy and military—then the “flag” of crucial decisions would be pulled closer to them than if they are disunited; there should not be perceptions of a “disloyal” opposition or an “illegitimate” majority party.100
In a spring 2014 public opinion survey, the military had the most public support by far, followed by the “national government,” with the “court system” far behind.101 The army seems unwilling to play its usual deus ex machina role, and it is not clear that the judiciary has the capacity to be its substitute. The lawyers have subsided in their activism and no longer look like the acceptable face of a middle class–centered, civil society–led transformation of the polity. In one compilation of scenarios for Pakistan, we find a judgment that “the judiciary and the legal profession barely qualify as major factors in shaping Pakistan’s future. … The idea of the law as supreme is not generally respected in a country where force and coercion play major roles.”102 The Supreme Court, however, has had very strong support for what it is doing: in a 2012 Gilani Poll/Gallup Pakistan survey, 62 percent of respondents agreed that the court was acting “within its mandate” (up from 57 percent two years before).103 It is still possible that the judiciary may figure out how it can get the contestants in the tug-of-war to follow the rules that it has shaped to a considerable extent and so play a not insignificant part, at least, in putting Pakistan on the road to an effective and genuinely democratic government.
NOTES