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

Pakistan's Powerful Chief Justice

 
 

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.

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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.

There is no clear favorite in the polls, but the general expectation is that they will bring the PML-N to power. This is a relationship that has yet to be tested. The PML-N has not been in power at the federal level during the Chaudhry era. While Chaudhry has largely made decisions that are favorable to the PML-N, he has an inherent antagonism toward incumbents. And so it remains to be seen whether the PML-N, if it comes to power, and Chaudhry, can get along, especially on combatting corruption. Chaudhry could press the next government to investigate military officers and civilian beneficiaries — one of whom might be Sharif — in the aforementioned Asghar Khan case. If it comes to power, would the PML-N comply with Chaudhry’s orders or pursue a resist and delay strategy like the PPP has?

In the longer term, there is the question of how enduring Chaudhry’s legacy will be and whether the court will be able to maintain its institutional autonomy, corporate solidarity, and public popularity. Last year, Chaudhry declared unconstitutional a law that gave senior government officials immunity from contempt of court charges. Earlier, he compelled parliament to amend the constitution and create a role for the court in superior court appointments.

But it is unclear as to whether Chaudhry’s successor will have the capacity to resist efforts to clip the Supreme Court’s powers. Both the PML-N and PPP agreed in the 2006 Charter of Democracy (CoD) to create a separate Constitutional Court.  Such a move has been untenable for the PPP, but the PML-N, which has been a major proponent of the present court and the CoD, could opt to make judicial power more diffuse at the federal level.

Chaudhry will be succeeded by Justice Tassaduq Jilani, who will be at the helm for around seven months. He will be followed by Justice Nasir-ul-Mulk, who will serve as chief justice for approximately one year. Neither Jilani nor Nasir will have a tenure as lengthy as Chaudhry’s. And neither Jilani nor Nasir have Chaudhry’s public recognition and capital to drive change. But they do seem to share Chaudhry’s penchant for judicial vigilance. And the court under Chaudhry has had a strong corporate identity: it seems to have an unusually high rate of making unanimous decisions and even has its own theme song. Though the judiciary’s power to resist the executive and legislative branches might be tempered, the judges’ solidarity will not dissolve upon Chaudhry’s retirement.

Amid the unending judicial battles at the federal level, justice has yet to meaningfully trickle down to the average Pakistani. The backlog in the entire court system consists of over a million cases, which has given rise to murderous entrepreneurs like vigilante mobs and the Taliban. The courts are overburdened. Local government and police too have capacity issues and are sullied by corruption and indifference. Before Chaudhry, the court’s greatest challenge was to deliver justice to the common man. And after Chaudhry, that will remain its greatest challenge. Reversing course will require a whole-of-government approach. But that will not be possible if Pakistan’s branches of government are at war with one another.

Arif Rafiq is an adjunct scholar at the Middle East Institute and president of Vizier Consulting, LLC, which provides strategic guidance on Middle East and South Asian political and security issues. He tweets at @arifcrafiq.

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