Pakistan and the Judiciary

Pakistani President Asif Ali Zardari made this remark in a BBC interview in April 2008 while answering a question about the reinstatement of the deposed Supreme Court judges, including Pakistani Chief Justice Iftikhar Chaudhry. It reinforced the commonly held view that President Zardari was personally against the reinstatement because he feared that, if reinstated, the deposed Supreme Court judges with their newfound strength and independence would reopen the corruption cases against him.

While Zardari had his personal reasons for delaying the reinstatement, the primary concern of Zardari’s close aides and members of his ruling party was that a strong and independent judiciary would tilt the balance of constitutional power in favor of the judiciary. Not surprisingly, the other two state organs, the Executive branch headed by the president and the Legislative branch headed by the prime minister, found it hard to grapple with this readjustment of the balance of power.

The foundation for this readjustment was laid March 9, 2007, when Chief Justice Chaudhry was sacked by the military ruler, President Pervez Musharraf. The sacking sparked protests all over Pakistan and triggered the historic Pakistani lawyers’ movement for the reinstatement of the chief justice and the rule of law.

The lawyers’ movement is considered historic not just for its admirable goals of having the rule of law and a strong and independent judiciary in Pakistan. It is the tenacity, perseverance and the ultimate success of the movement’s supporters that earned it its rightful place in history. For Pakistan, it was successful in bringing about a long-awaited and much-needed change in the Pakistani judiciary’s relationship with the executive, specifically the office of the president.

The supporters of the movement were inspired and motivated by the chief justice’s firm and principled stand against the whims of a military ruler. It was in stark contrast to the conduct of pliant Supreme Court judges complicit in legitimizing the unconstitutional military takeovers in the past. By refusing to concede to the unconstitutional demands of Musharraf, the chief justice had started the revitalization of the defunct system of checks and balances between these two important organs of the state.

After a two-year unrelenting struggle, the judges were reinstated in March 2009. Interestingly, the delay in the reinstatement was in large part attributed to the democratically elected President Zardari, who under one pretext or another, dragged his feet on the issue for more than a year. His reluctance stemmed from his fear that a strong and independent judiciary would reopen the corruption cases against him. However, by delaying the reinstatement, Zardari missed a heaven-sent opportunity to bolster his credibility as a sincere and well-meaning leader and possibly strengthen his claim that he had been politically victimized through the corruption cases. His delay laid the foundation for the strained relations between the executive and the judiciary.

Through his decisions and actions, Zardari showed his derision for an independent judiciary and his willingness to confront it. For instance, in early 2010, Zardari unconstitutionally elevated the chief justice of the Lahore High Court to the Supreme Court without consulting the chief justice of Pakistan. Chief Justice Chaudhry wasted no time and constituted a Supreme Court bench, which declared the appointment unconstitutional.

While Zardari was squaring off with the judiciary, Prime Minister Yousuf Raza Gilani appeared to be more respectful of the judiciary and even played the role of arbiter between the presidency and the judiciary. Still, Gilani himself sparred with the judiciary on some key issues. During a Parliamentary address in February 2010, he stated that the reinstatement of the judges was effected through an executive order passed by him and that he could withdraw this order at anytime. Although significant, this remark was initially brushed aside as a purely political statement made by a prime minister trying to appear strong. However, after news channels in October reported rumors that Gilani was seriously considering withdrawing the executive order to remove the reinstated judges, including Chief Justice Chaudhry, the Supreme Court convened to pre-empt such an action, declaring that the removal of the judges in that manner would be unconstitutional.

The president and prime minister’s actions raise the question: Why are they on a collision course with the judiciary? One obvious reason is that a strong and independent judiciary is changing politics in Pakistan. Zardari and Gilani’s decisions and actions represent a mindset developed in a political culture in which politicians exercise unfettered discretion and are almost never held accountable. Their “misadventures” are either just embarrassing blunders or part of the ruling party’s one-upmanship game in the intensifying turf war between the state organs.

While justifying their decisions, the president and prime minister sometimes play the victim by alluding to judicial activism, a term that generally has negative connotations. Historically, Pakistan’s judiciary has had an inactive and ineffective role; any possible judicial activism would be a welcome change. In fact, with all the bad news coming out of Pakistan and the nation’s general despondency, this is probably the only change Pakistanis can believe in. §

Rana Sajjad Ahmad is a graduate of Columbia University School of Law and a member of the New York Bar. He is a partner at Rana Ijaz & Partners, a law firm based in Lahore, Pakistan

“All of them have played politics. Iftikhar Chaudhry had played politics before, and he’s playing politics even now.”

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