Pakistan's Powerful Chief Justice
Image Credit: Flickr (Harvard Law Record)

Pakistan's Powerful Chief Justice

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A case can be made that most significant political actor in the past six years in Pakistan is the country’s Supreme Court chief justice, Iftikhar Muhammad Chaudhry.

After all, it is Chaudhry who has redefined the role of the country’s high courts in matters of public interest. Through his aggressive use of suo moto action — i.e. acting on his own cognizance — the chief justice has put Pakistan’s politicians, civil bureaucracy, and military on the defensive, serving as the anti-corruption superhero longed for by the urban middle class. A judicial populist, Chaudhry has taken action against corruption in state-owned enterprises, government price hikes, and the military’s unlawful detention of civilians in the war on terror.

It is Chaudhry’s defiance of President Pervez Musharraf in 2007 that gave birth to a civil society movement that made the first decisive cracks in the general’s armor. A weakened Musharraf prodded by Washington was then forced to strengthen outreach to self-exiled politician Benazir Bhutto, whose return to Pakistan enabled chief rival Nawaz Sharif to also come back. Prior to this, both Bhutto and Sharif were lost in the political hinterlands of Dubai and London.

It is Chaudhry who has constrained the military’s political options in more ways than one. Since Chaudhry’s restoration to office in 2009 — he was sacked by Musharraf twice in 2007 — his presence as chief justice has effectively disallowed the military to seek judicial endorsement of a coup, should it entertain the option. Traditionally, military coup makers in Pakistan have relied on validation of their interventions by the courts, using the infamous Doctrine of Necessity. Not only has Chaudhry declared the doctrine null and void, his court ruled in the Asghar Khan case that the 1990 elections were rigged by the military and ordered the government to investigate and prosecute those involved.

At the same time, Chaudhry has appropriated the military’s role as “cleanser” of the country’s corrupt political system, disqualifying Prime Minister Yousuf Raza Gilani for failing to comply with a court order to ask the Swiss government to reinstate corruption charges against President Asif Ali Zardari. While the conflict between Chaudhry and the present government has contributed to instability, it has also made the military’s participation in anti-corruption efforts superfluous, and the net result might actually be a greater lifetime for civilian rule.

The Chaudhry era is, however, coming to an end. The chief justice is scheduled for retirement this December. Chaudhry’s departure will come after parliamentary and presidential elections and the selection of a new army chief. Everything in Pakistan is up in the air. And so the question is how all these changes will impact Pakistan’s powerful Supreme Court.

In the near term, one can expect Chaudhry to continue to take measures to ensure that general elections take place this spring. This year, Chaudhry has twice pledged that the polls will take place. He dismissed a petition by cleric-politician Tahir-ul Qadri — suspected by some, including the courts, to be on a mission to sabotage the elections — to have the election commission replaced. Chaudhry has even asked the federal election commission to determine whether compulsory voting is logistically possible. But Chaudhry will also likely back efforts to have an aggressive candidate vetting process before the elections, disqualifying those involved in corruption. The well-intended, but weak election commission might be pulled in opposite directions by Chaudhry and Pakistan’s two largest parties, the Pakistan Peoples Party (PPP) and Pakistan Muslim League – Nawaz (PML-N), who are collaborating to weaken the candidate vetting process.

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