Herald exclusive: Courting power

Published November 19, 2013
Pakistan's then suspended Chief Justice Iftikhar Chaudhry (C) arrives with his supporters in Chakwal in this June 16, 2007 file photo. —Reuters
Pakistan's then suspended Chief Justice Iftikhar Chaudhry (C) arrives with his supporters in Chakwal in this June 16, 2007 file photo. —Reuters
Chief Justice Iftikhar Chaudhry shakes hands with Yousuf Raza Gilani in this February 17, 2010 file photo. — Reuters
Chief Justice Iftikhar Chaudhry shakes hands with Yousuf Raza Gilani in this February 17, 2010 file photo. — Reuters
Supreme Court Chief Justice Iftikhar Chaudhry (C) is escorted to his office in Islamabad in this March 24, 2009 file photo. — Reuters
Supreme Court Chief Justice Iftikhar Chaudhry (C) is escorted to his office in Islamabad in this March 24, 2009 file photo. — Reuters

In November 2008, several months after being released from house arrest by the newly-elected civilian government, Chief Justice Iftikhar Muhammad Chaudhry delivered a major speech at the Harvard Law School, which had awarded him its Medal of Freedom. At the time, Pakistan remained in a state of constitutional limbo — caught between a lingering Provisional Constitutional Order (PCO), which General (retd) Pervez Musharraf imposed upon declaring his extra-constitutional state of ‘emergency’ in November 2007, and the new coalition government’s pledge to restore the pre-emergency constitution and reinstate the dozens of Supreme Court and High Court judges, including Justice Chaudhry, whom Musharraf had forcibly removed from office.

While freed from confinement, Justice Chaudhry and the other ousted judges remained sidelined, as the new government proved sluggish in making good on its constitutional pledges. Many more months would pass before the government, led by the Pakistan Peoples Party (PPP) — faced with mounting pressure by the Lawyers’ Movement, opposition politicians and, eventually, the chief of army staff – finally agreed to the full reinstatement of judges ousted by Musharraf, including Justice Chaudhry. In the meantime, having received numerous expressions of support and speaking invitations from lawyers and bar associations in the US during his period of detention, Justice Chaudhry’s Harvard visit afforded him an opportunity not only to thank these overseas supporters of the Lawyers’ Movement for their solidarity, but also to make a case for the restoration of the pre-emergency constitution and judiciary.

In his speech, Justice Chaudhry recounted the chequered history of Pakistan’s Supreme Court – what he described as a “61-year long judicial nightmare” — and the recent efforts by Pakistani lawyers and judges to fashion a different kind of judicial role. He invoked storied figures such as Sir Edward Coke, recounted landmark events in legal history such as the English Act of Settlement, and called upon Pakistan to replace the “rule of man” with the “rule of law”. Above all else, Justice Chaudhry celebrated the value of “judicial independence” in helping to ensure good governance, combating public disorder, and promoting economic prosperity.

In emphasising the importance of judicial independence and the rule of law, Justice Chaudhry spoke as judges around the world often do. But especially in retrospect, one aspect of his speech is particularly striking. Over six decades, he argued, “both civilian as well as uniformed autocrats” had acted to undermine judicial decision-making in Pakistan. And in the present moment, he lamented, Pakistan’s “autocrats” — “military as well as democratic” – were continuing to “turn the wheels of history in the wrong direction” by inhibiting the judiciary’s autonomy.

At no point, in his speech, did Justice Chaudhry draw any distinction between challenges to judicial autonomy under military regimes as opposed to civilian democratic regimes, or explain the particular forms that “judicial independence” should take in one context versus the other. To the contrary, he characterised the infringements upon judicial autonomy by military and civilian regimes as comparable, if not equivalent. Given the particular moment in which he spoke, that omission might be understandable. But, as he now prepares to retire, this subtle detail in his Harvard speech, which escaped notice at the time, offers potential insights in helping to explain his legacy as Pakistan’s longest-serving and, arguably, most influential chief justice — one who has forcefully asserted the Supreme Court’s autonomy not just vis-à-vis Pakistan’s military regimes, but also vis-à-vis its civilian representative institutions.

It has almost become a cliché to observe that Pakistan’s judiciary has historically lacked “independence” — and understandably so, for throughout Pakistan’s history, the judiciary has been crucial to the process by which the military and affiliated status quo interests have consolidated power and influence. When the military directly seized power, the judiciary invoked the “doctrine of state necessity” to validate the intervention, enabling constitutional shifts that have preserved the military’s dominance. Military regimes have regularly ensured the judiciary’s alignment with their interests, whether by manipulating and reshaping its composition, limiting its jurisdiction, or exercising more informal influence. Even when civilian rule has formally returned, the judiciary has often continued to play a comparable role in brokering political disputes and facilitating the military’s continued political dominance — most notably, in its adjudication of parliamentary dissolutions under the now defunct, Article 58(2)(b) of the Constitution.

At the same time, that characterisation of the judiciary’s traditional lack of “independence” may paint an incomplete and misleading picture. After all, “judicial independence” is not a static, all-or-nothing concept or even a concept that exists along a one-dimensional continuum. Rather, as Professor Stephen B Burbank of the University of Pennsylvania has explained, judicial independence arises more dynamically from various institutional relationships within which the judiciary is embedded — for example, between the judiciary and other government actors, private-interest groups, lawyers and bar associations, the media, the people at large and, for many countries, the military. Within each of these relationships, the balance between judicial autonomy and judicial constraint may be shaped at many points of influence — including the judiciary’s institutional structure, the processes of judicial appointment and removal, the regulation of judicial conduct, the administration of judicial business, and the means of responding to substantive judicial decisions.

Moreover, while frequently invoked as an abstract ideal, judicial independence is not an end in itself. To the contrary, it exists to serve other socially desirable normative goals such as democracy, constitutionalism, securing of fundamental rights and the rule of law, among others. Abstract invocations of judicial independence offer little guidance on the forms it should take, in any given context, to advance those goals, which can vary in importance from one context to another. In countries such as Pakistan or Egypt, for example, strengthening civilian representative institutions and enhancing mechanisms of judicial accountability may be more important than in other settings where those institutions are already strong. A more complete understanding of judicial independence, therefore, demands attention to the evolving balance between judicial autonomy and judicial constraint across an array of dimensions, and the extent to which that balance advances the particular ends it exists to serve in any given time or circumstance.

When judicial independence is understood in this multidimensional fashion, the legacy of the Chaudhry Court for judicial independence itself becomes multifaceted.

On the one hand, from the time that Justice Chaudhry ascended to become the chief justice of Pakistan, in 2005, through his attempted removal in 2007, the Supreme Court broke from its historical role by exhibiting an unusual degree of assertiveness vis-à-vis Musharraf’s military regime. Under Chaudhry’s tenure as chief justice, and with the eventual support of the Lawyers’ Movement, the Supreme Court increasingly challenged Musharraf’s regime — for example, expanding its use of public-interest litigation and suo moto powers, invalidating the regime’s privatisation of state-owned enterprises, and investigating disappearances arising from the US-led counterterrorism campaign.

Functionally, the Supreme Court’s actions were not unprecedented. As Professor Maryam Shahid Khan of Lahore University of Management Sciences, has explained, the Supreme Court built upon mechanisms that had initially been used to enhance its power and autonomy under civilian rule during the 1990s. What was an innovation, however, given the Supreme Court’s institutional history, was the unprecedented use of these mechanisms to directly challenge Pakistan’s military and affiliated interests, rather than civilian governments. Moreover, after Justice Chaudhry refused Musharraf’s demands that he resign – and the Supreme Court itself dismissed Musharraf’s allegations against him – the Supreme Court consolidated its autonomy from the military regime even further. The Supreme Court ventured close to the very core of the military regime’s interests: Opening an inquiry into the controversial Lal Masjid military operation and entertaining petitions challenging Musharraf’s eligibility to be re-elected president.

On the other hand, since Justice Chaudhry’s restoration to office in March 2009, what had been a conflict over judicial autonomy from the military, rapidly transmuted into a conflict over judicial autonomy from an elected parliament. In a series of major decisions, the Supreme Court continued to assert its autonomy, as it had before Musharraf’s emergency, in November 2007. However, in doing so, the Supreme Court elided any distinction between the autonomy and power it claimed vis-à-vis Musharraf’s military regime and the autonomy it now began to assert — even more forcefully — vis-à-vis the post-Musharraf civilian government.

For example, in July 2009, a 14-judge bench led by Chaudhry culminated its challenge to Musharraf’s military regime in a landmark judgment invalidating the entire legal edifice of Musharraf’s emergency — including the initial proclamation of emergency and the PCO, and all orders, laws, constitutional amendments and other actions by Musharraf during the emergency. The Supreme Court’s unprecedented judgment decisively repudiated its historical role as an enabler of extra-constitutional military intervention, disavowing the “doctrine of state necessity”, and sanctioning individual judges whose conduct had enabled Musharraf’s intervention.

However, at the same time, the judgment also asserted the Supreme Court’s autonomy from civilian political actors — implicitly rebuking the PPP-led government for not fully or more quickly reinstating the judges ousted by Musharraf. The Supreme Court’s decision displaced a political settlement which, after protracted contestation and negotiation, had finally — if imperfectly — resolved the conflict over the judiciary in favour of its own resolution. The judgment amounted to an unmistakable assertion of autonomy not just from the previous military regime but also from the present civilian government.

The conflict between the Supreme Court and the civilian government openly erupted in December 2009 when a 17-judge bench invalidated the National Reconciliation Ordinance (NRO), negotiated between Musharraf and Benazir Bhutto. While the unpopular NRO was vulnerable to straightforward invalidation on relatively narrow grounds, in a 287-page opinion, the Supreme Court also declared the ordinance inconsistent with a slew of constitutional provisions — levelling it, as I A Rehman described, with a “fusillade from heavy cannons” even though it was “such an easy target that a single shot ... was enough to demolish it”.

Once again, the Supreme Court displaced a negotiated political settlement — in this instance, between Musharraf and Bhutto — with its own resolution, articulated in legal terms, but no less political.

What could have been a judgment in more limited principles of equality and non-arbitrariness instead became a wide-ranging decision, decrying corruption and a presumptive lack of morality among Pakistan’s civilian politicians. In this manner, the Supreme Court suggested a role for itself not simply as a referee of central political questions but as an arbiter, in more fundamental terms, of political integrity and morality — a role it forcefully asserted two years later, when it removed Yousaf Raza Gilani as prime minister for his failure to implement the Supreme Court’s NRO judgment.

Over time, the Supreme Court under Justice Chaudhry has increasingly framed its assertions of autonomy as explicitly intended to protect “judicial independence”. For example, when the parliament adopted the 18th Amendment’s provisions overhauling the process for judicial appointments, the Supreme Court convened a 17-judge bench to hear months’ worth of arguments that the provisions were inconsistent with a “salient feature” of the Constitution — namely, the “independence of the judiciary” — and, therefore, beyond the parliament’s constitutional amendment power altogether. When the Supreme Court issued its decision, it exhibited some finesse, but forcefully asserted its autonomy all the same, insisting that Parliament should “reconsider” the 18th Amendment in light of the Supreme Court’s “concerns/reservations” and “observations/suggestions”, in order to ensure “consonance ... with judicial independence”. While the Supreme Court nominally struck a cooperative tone, the subtext of its order seemed clear: If Parliament did not revise the provisions along the lines that the Supreme Court had suggested, then the Supreme Court would likely invalidate the provisions as beyond the parliament’s amendment power.

Of course, even accepting judicial independence as part of the Constitution’s basic structure offers little guidance, by itself, as to what that “independence” concretely requires, with respect to the appointments’ process or anything else. But the Chaudhry Court’s treatment of judicial independence as an abstract but justiciable constitutional guarantee raises concerns whether or not it is understood as part of the Constitution’s basic structure. For one thing, placing responsibility for interpreting and specifying what “independence” requires with the judiciary itself leaves those determinations with an actor institutionally self-interested in the outcome.

More fundamentally, judicial independence is not a static, undifferentiated concept — as the Supreme Court and others often assume — but rather comprises an evolving balance between judicial autonomy and constraint across a range of relationships and dimensions. While courts certainly adjudicate and specify abstract principles all the time, whether this conception of judicial independence, given its nature, lends itself well to that kind of concrete specification, through a process of common law and case-by-case adjudication of discrete issues remains far from clear.

Writing about US debates over judicial review, Professor Barry Friedman of New York University has described how discussions of the judicial role tend to coalesce around two basic positions: One regarding the judiciary as a “threat” that “diminishes or interferes with democratic governance”, and one offering a basis for “hope”, in which the judiciary, if conferred with sufficient “independence”, can help “ensur[e] that government adheres to constitutional command”. As Pakistan’s historical experience illustrates, countries in the “grey zone” between democracy and authoritarianism present contextually distinct versions of this threat-or-hope dilemma, in which aggressive assertions of judicial autonomy against weak representative institutions can weaken those institutions even further — and, in the process, can further reinforce the already well-entrenched power of status quo interests.

Fashioning a judicial role more conducive to reinforcing democratic consolidation will require Justice Chaudhry’s successors to confront and move beyond two ironies in the Supreme Court’s increasingly populist self-identity. First, the Supreme Court’s agenda in recent years, while “populist” in its orientation, has widened disconnect between the priorities of the higher judiciary and other pressing public needs in reform of the judicial system. While the Supreme Court has devoted enormous energy to major political cases, a judiciary animated by a populist sense of accountability and legitimacy might well choose to prioritise other tasks.

Despite the increasing use of public interest litigation in the higher judiciary, ordinary Pakistani citizens are still much more likely to interact with the lower judiciary, whose courts suffer from huge case backlogs, widespread corruption, uneven quality, and other problems interfering with access to justice. Those problems invite more sustained attention from the Supreme Court and the High Courts, which are ultimately responsible for the superintendence of the lower courts. Even within the higher judiciary itself, the intensive focus on political cases has necessarily placed other public interest cases on the back burner.

Secondly, while the Supreme Court increasingly seems to understand itself as directly legitimated by the people, in fact the judiciary has no direct lines of accountability to that supposed source of legitimacy. The people have no direct role in judicial appointment or removal — and indeed, given the manner in which the appointment and removal processes have evolved, the people have little meaningful and indirect role through their elected representatives in the parliament. There is simply no way for public opinion to directly inform judicial decision-making in an unmediated way. While judges might hope to infer the will of the people from Pakistan’s lively and open media, the media is necessarily an imperfect proxy for popular will.

In this context, a Supreme Court that sincerely desires its legitimacy to rest with the people itself has an interest in stronger representative institutions and stronger lines of accountability to those institutions. A more robust public conversation on how to implement mechanisms of judicial accountability could help to better legitimise the role that the Supreme Court has increasingly sought to perform.

In recent years, however, even as the Supreme Court has repeatedly asserted its autonomy in the name of “judicial independence”, a serious public conversation concerning the overall balance between judicial autonomy and judicial constraint, and about mechanisms to enhance judicial accountability, has remained elusive.

Pakistan’s long-term trajectory out of the “grey zone” between democracy and authoritarianism requires representative institutions with strengthened governance capacities and power to rein in entrenched status quo interests. Given the existing weaknesses and enduring vulnerabilities of Pakistan’s representative institutions, assertions of judicial autonomy vis-à-vis civilian governments can pose threats to democracy that might not be present or as severe in other countries.

Justice Chaudhry’s assertions of judicial autonomy to challenge Musharraf’s military regime were unprecedented, and have contributed to what may be the most hopeful shift to civilian democratic rule in Pakistan’s history. But with that transition now well under way, democratic consolidation may benefit further if his successors in the Supreme Court approach “judicial independence” with nuance, caution, and contextual sensitivity to the dilemmas arising from assertions of judicial autonomy against civilian democratic institutions.



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