Judicial Coup in Pakistan

The views expressed in this piece are not those of PTH. This article was sent to us as a contrarian viewpoint and in the interest of promoting a debate, we are posting it. Some of the contents are controversial; and we hope that the readers will correct the perceptions about the judicial activism that is supported by many people in Pakistan. (PTH Editors)

Once a democratic champion, the Chief Justice now undermines the elected government. (WSJ-OPINION ASIA)

By DAVID B. RIVKIN JR. AND LEE A. CASEY

RivkinCasey

When U.S. President Barack Obama sharply challenged a recent Supreme Court decision in his State of the Union address, prompting a soto voce rejoinder from Justice Samuel Alito, nobody was concerned that the contretemps would spark a blood feud between the judiciary and the executive. The notion that judges could or would work to undermine a sitting U.S. president is fundamentally alien to America’s constitutional system and political culture. Unfortunately, this is not the case in Pakistan.

Supreme Court Chief Justice Iftikhar Mohammed Chaudhry, the country’s erstwhile hero, is the leading culprit in an unfolding constitutional drama. It was Mr. Chaudhry’s dismissal by then-President Pervez Musharraf in 2007 that triggered street protests by lawyers and judges under the twin banners of democracy and judicial independence. This effort eventually led to Mr. Musharraf’s resignation in 2008. Yet it is now Mr. Chaudhry himself who is violating those principles, having evidently embarked on a campaign to undermine and perhaps even oust President Asif Ali Zardari. (image above – Associated Press)

Any involvement in politics by a sitting judge, not to mention a chief justice, is utterly inconsistent with an independent judiciary’s proper role. What is even worse, Chief Justice Chaudhry has been using the court to advance his anti-Zardari campaign. Two recent court actions are emblematic of this effort.

The first is a decision by the Supreme Court, announced and effective last December, to overturn the “National Reconciliation Ordinance.” The NRO, which was decreed in October 2007, granted amnesty to more than 8,000 members from all political parties who had been accused of corruption in the media and some of whom had pending indictments.

While some of these people are probably corrupt, many are not and, in any case, politically inspired prosecutions have long been a bane of Pakistan’s democracy. The decree is similar to actions taken by many other fledgling democracies, such as post-apartheid South Africa, to promote national reconciliation. It was negotiated with the assistance of the United States and was a key element in Pakistan’s transition from a military dictatorship to democracy.

Chief Justice Chaudhry’s decision to overturn the NRO, opening the door to prosecute President Zardari and all members of his cabinet, was bad enough. But the way he did it was even worse. Much to the dismay of many of the brave lawyers who took to the streets to defend the court’s integrity last year, Mr. Chaudhry’s anti-NRO opinion also blessed a highly troubling article of Pakistan’s Constitution—Article 62. This Article, written in 1985, declared that members of parliament are disqualified from serving if they are not of “good character,” if they violate “Islamic injunctions,” do not practice “teachings and practices, obligatory duties prescribed by Islam,” and if they are not “sagacious, righteous and non-profligate.” For non-Muslims, the Article requires that they have “a good moral reputation.”

Putting aside the fact that Article 62 was promulgated by Pakistan’s then ruling military dictator, General Zia ul-Haq, relying on religion-based standards as “Islamic injunctions” or inherently subjective criteria as “good moral reputation” thrusts the Pakistani Supreme Court into an essentially religious domain, not unlike Iranian Sharia-based courts. This behavior is profoundly ill-suited for any secular court. While Article 62 was not formally repealed, it was discredited and in effect, a dead letter. The fact that the petitioner in the NRO case sought only to challenge the decree based on the nondiscrimination clause of the Pakistani Constitution and did not mention Article 62 makes the court’s invocation of it even more repugnant. Meanwhile, the decision’s lengthy recitations of religious literature and poetry, rather than reliance on legal precedent, further pulls the judiciary from its proper constitutional moorings.

The second anti-Zardari effort occurred just a few days ago, when the court blocked a slate of the president’s judicial appointments. The court’s three-Justice panel justified the move by alleging the president failed to “consult” with Mr. Chaudhry. This constitutional excuse has never been used before.

It is well-known in Islamabad that Mr. Zardari’s real sin was political, as he dared to appoint people unacceptable to the chief justice. Since consultation is not approval, Mr. Chaudhry’s position appears to be legally untenable. Yet Mr. Zardari, faced with demonstrations and media attacks, let Mr. Chaudhry choose a Supreme Court justice.

There is no doubt that the chief justice is more popular these days than the president, who has been weakened by the split in the political coalition which brought down Mr. Musharraf. Former Prime Minister Nawaz Sharif is now a leading opponent of the regime. There is a strong sense among the Pakistani elites that Justice Chaudhry has become Mr. Sharif’s key ally.

The fact that Mr. Chaudhry was a victim of an improper effort by former President Musharraf to replace him with a more pliant judge makes his current posture all the more deplorable. His conduct has led some of his erstwhile allies to criticize him and speak of the danger to democracy posted by judicial meddling in politics. The stakes are stark indeed. If Mr. Chaudhry succeeds in ousting Mr. Zardari, Pakistan’s fledgling democracy would be undermined and the judiciary’s own legitimacy would be irrevocably damaged. Rule by unaccountable judges is no better than rule by the generals.

Messrs. Rivkin and Casey, Washington, D.C.-based attorneys, served in the Department of Justice during the Ronald Reagan and George H.W. Bush administrations.

12 Comments

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12 responses to “Judicial Coup in Pakistan

  1. Mustafa Shaban

    I dont support these views, in fact the CJ did not do anything unconstitutional by nulling the NRO and the affairs of the judiciary are the role of Chief Justice not President.

  2. Muhammad

    “affairs of the judiciary are the role of Chief Justice not President.”

    All affairs of county including judiciary are the role of people and by extension that of elected representative Prime Minister. Who is unelected CJ to enforce his views on the people of Pakistan? This is tyranny. Now we need to worry of both khaki and black uniform dictatorships for the rest of our lives. Irrespective of how bad Zardari is, people of Pakistan deserve their opinions enforced, be those opinions right or wrong. This damocracy.

  3. PM

    Rouge Justice: how dare he reject NRO.

  4. Midfield Dynamo

    NRO is a conspiracy against the poor and the innocent.
    I don’t understand how the writer has the inclination to compare Obama with AZ, had Obama any similarity with Asif’s record; he would not have been elected senator let alone President.
    I have little sympathy for the CJ, but that does not condone the crimes of the NRO beneficiaries.
    If we continue to compromise our standards of justice system for the sake of expediency, Pakistan is doomed to remain stuck in this quagmire. Only the opportunists suggest delaying tactics, sincere efforts would require action, if someone is to be brought to the mat then why the dilly dallies. Sincerity will not come from some half baked lawyer in the US, they should conjure up an NRO in the US, get the CEOs who bungled up Wall Street back, the Governor of NY back, Mayor of Chicago and how about Madoff, he is akin to our revered AZ, he is in for life many times over. Why don’t these lawyers do something in their own country, surely they will make more money there, instead of making ill informed comments about our ‘fledgling’ democracy.
    Pakistan is not going anywhere, the land is there and its people will remain on it, what we need is an honorable existence for the entire stratum. Democracies, Khakis, Religious leaders, Feudal lords, Business class and the Judiciary have all played a hand in dragging the country back from progress, for self serving immediate gains, the only people that have suffered from this lust for ill begotten wealth and power have been the poor. It is a short sighted approach, for soon this poor lot will get a leader who will organize them to appropriate their rightful status in our society, that will be a sad day for all of the above.

  5. B. Civilian

    midfield dynamo

    If we continue to compromise our standards of justice system for the sake of expediency, Pakistan is doomed to remain stuck in this quagmire

    standards of justice system… like innocent until proven guilty?

  6. Tilsim

    This article makes an important point that the CJP is stepping beyond ideal Judicial norms into the realm of politics. I don’t agree with the writers regarding their stance on the NRO – I think they are probably not familiar with the details of the NRO. The NRO may have had some good elements but it went way beyond what would constitute a defencible compromise. However I do think they make an important point about Article 62. The invocation betrays the mindset and world view of these Judges who seem to be on a mission to resurrect Zia’ vision of a religious State. Is it a surprise to anyone that the CJP is close to Nawaz Sharif? The CJP is part of the same forces that want to turn Pakistan into a ‘Fortress’.

  7. Hayyer

    The issue is larger than simply a political minded judge. It is about the separation of powers.
    Judges in India have been similarly inclined in recent years. Not politically inclined, but seeking executive authority, exercising it whimsically, even on caprice. Judges are seeking populist support which they neither need nor should pander to. They seek to elevate the judiciary as an institution at the cost of the civil executive. The ills of the executive are not amenable to judicial remedies any more than they are to military solutions. Indeed if the civil executive is incurably sick the army can lay greater claim to effecting a cure than judges from the seclusion of the bench. Power brings responsibility; judges should remain above the common affray, not seek to join in.
    A judiciary eager for executive power but unwilling to face the consequences of its actions is a worse nightmare than army rule. It is a prescription for anarchy. The executive cannot become the handmaiden of the courts, forced to accept the blame but powerless to prevent it.

  8. hoss

    “The issue is larger than simply a political minded judge. It is about the separation of powers.”

    Hayyer,
    You are reading too much in to this. There is no Judicial coup taking place in Pak. This a standard PPP propaganda line and perhaps Hussain Haqqani(Pak amb. to US) has used his influence to get this story published.

    Zardar and his incompetent lieutenants need to work towards establishing rapport with the judiciary and other institutions rather than plotting new ways to pick fights with them.
    Zardari needs to resign if he can’t take the heat on the swiss cases. To me the more he insists on the presidential immunity, the more guilty he appears.

  9. Saleem Iqbal

    The settlement of the judges’ appointment issue as a result of the initiative taken by the prime minister marks a new beginning in relations between the judiciary and the executive, the two most important institutions of the state. It also goes to the credit of the government that despite having a different legal perspective on the issue, it did not make it a question of prestige and thought it appropriate to resolve it in the best interests of the nation. The amicable resolution of this issue represents the triumph of democracy and success of the policy of reconciliation and consensus adopted as a political creed by the government. People can see for themselves how a dictator dealt with the judiciary and how a democratic and representative government has treated it. The resolution of this issue is also a great snub to the elements who were trying to foment confrontation between the government and the judiciary and those who were hell-bent on discrediting and embarrassing the government by attaching all kinds of motives to it for having taken a different view from the judiciary.Thanks to the political maturity exhibited by the government, the machinations of these elements have not succeeded and they have had to eat dust in the end. But as they say, cynics will remain cynics; these elements have still not given up on their agenda and the propensity to malign and discredit the government.

  10. Midfield Dynamo

    One of my comments was not posted, perhaps the truth in this case was difficult to bring to the table.

  11. Honest People

    Chief Justice Iftikhar Chaudhry is unique. His judges are his soldiers. The judiciary functions under his chain of command. Every judge is at his beck and call. His is the last word. He constitutes benches comprising of judges of his own choice. He decides cases against persons who were never a party to any case. He condemns them unheard and that too without notice. He has removed over 104 judges of superior judiciary without hearing them. He is of the view that the position of a judge is so honorific that he should not appear before his brother judges and therefore no hearing should be provided to him. He has repeatedly dubbed these 104 judges as PCO judges whereas none of these judges ever took an oath under the PCO while Chief Justice took PCO oath twice and also validated the PCO of General Musharaf in 2000. He issued contempt notices to his fellow judges and caused them to appear in court despite their elated positions. He can alter, violate or rewrite his own constitution. He can refuse to follow seniority principle in appointing a Supreme Court judge despite having held that all appointments in executive branch should be based on seniority. He condemns adhocism but has forced the appointment of an adhoc judge in the Supreme Court. He has condemned over 8000 persons including judges of superior courts, two high ranking law officers, a former attorney general and Chairman of NAB without providing all these persons with an opportunity of hearing in two recent judgments . In the judgment of 31st of July Chief Justice has relied on order dated 3rd of November 2007 of seven member bench. It is now established that no order was passed on 3rd of November 2007 by this so-called bench which in fact had never assembled. The Chief Justice has fabricated the said order. It is because of this reason that PCO judges who took oath on 3rd November 2007 are not being assigned any court work in violation of article 209 of the constitution by Chief Justice of Pakistan and Chief Justice of Lahore High Court for the last more than 8 months on the pretext of pending contempt proceedings. This act alone is causing a recurring loss of over 10 million per month to the national exchequer because these judges and their staff are getting full salary and perks but are not being made to work. The contempt proceedings are not being taken up since these are based on fictitious order of 3rd of November 2007 and further proceedings in this contempt case can bring to light the fraud committed by Chief Justice Iftikhar.

  12. Midfield Dynamo

    Sounds familiar, like the internal set up of the army or for that matter the civillian government….why not the judicial system too…