Thursday, March 30, 2023

The Judiciary as a Political Actor

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A new book edited by Christophe Jeffrelot examines the challenges our neighbor faces from within and outside. In this excerpt on the judiciary, Philip Oldenburg looks at the watershed Lawyers’ Movement

The political landscape of Pakistan has always had a prominent place for its judiciary, and particularly the Supreme Court. 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.” (Daud Munir, “Why Democracy Has Survived”, Express Tribune, March 13, 2013). 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.

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.

At loggerhead: (L-R) Pervez Musharraf’s sacking of Chief Justice of Pakistan Iftikhar Muhammad Chaudhry in 2007 led to the Lawyers’ Movement .
At loggerhead: (L-R) Pervez Musharraf’s sacking of Chief Justice of Pakistan Iftikhar Muhammad Chaudhry in 2007 led to the Lawyers’ Movement.

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. 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. According to Ghias (Shoaib A Ghias, legal expert), “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.” 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,” 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:

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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.

Crucially, the court blocked the implementation of the NRO (National Reconciliation Ordinance, which granted amnesty to politicians and others) that Musharraf had negotiated with Benazir Bhutto after Chief Justice Chaudhry’s restoration (“in desperation” according to Ghias). 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.

Historic Role: The theory of Zulfiqar Ali Bhutto’s “judicial murder” still holds currency
Historic Role: The theory of Zulfiqar Ali Bhutto’s “judicial murder” still holds currency

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.”

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. 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.

Historic Role:There was emphasis on shariat courts during the regime of Zia-ul-Haq
Historic Role:There was emphasis on shariat courts during the regime of Zia-ul-Haq

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. The “PCO (Provisional Constitution Order) 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.”

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. Although “judicial reform” would seem to be an obvious positive step, it is, in fact, problematic.

Flawed Attitude: The legal fraternity’ support for the killer of Punjab’s liberal governor Salman Taseer and their diatribe against Aasia Bibi, convicted in blasphemy case, reveal their undamentalist mindset
Flawed Attitude: The legal fraternity’ support for the killer of Punjab’s liberal governor Salman Taseer and their diatribe against Aasia Bibi, convicted in blasphemy case, reveal their undamentalist mindset

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. 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.

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.

Timely Intervention: The Supreme Court made use of its suo moto powers to dispense justice in the Mukhtaran Mai rape case
Timely Intervention: The Supreme Court made use of its suo moto powers to dispense justice in the Mukhtaran Mai rape case

But others see “judicial reform” as following from the empowerment of the citizenry, both at the grassroots level and in Parliament…. 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-198os, 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. It thus remains unclear whether the existing formal legal system… are the problem or the solution, when it comes to establishing a just political and social order. After all, as Siddique (Osama Siddique, legal scholar) 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.”

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 Mai rape 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 live 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.” 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… 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, 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. 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.

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…, the long-term effects of the court’s decisions are more likely to be uncertain and perhaps unfortunate.

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