The tug-of-war between the Supreme Court of Pakistan and that country’s executive continues. In 2007 Pervez Musharraf sacked the court’s chief justice and two associate justices for openly opposing the erstwhile dictator’s seizure of emergency powers. Within hours of the dismissal throngs of lawyers had taken to the streets in protest, exacerbating the crisis and precipitating Musharraf’s own fall and the restoration of Pakistani democracy. Since then, the Supreme Court has set the mark for independence in a neighborhood which, as pointed out by Dominic Nardi on a previous posting in this forum, already has an impressive history of suo moto judicial activism.
In late 2009 the Supreme Court again made headlines when it threw down a gauntlet against President Asif Ali Zardari by publically opposing a controversial amnesty granting the president and his allies immunity from prosecution. Since then tensions have continued to rise as the court has embarked on a quest to ferret out corruption in the executive and legislative branches, a move welcomed by the opposition as necessary, and decried by the government as being deliberately obstructionist.
Things came to a head this week when the high court, frustrated by government obstacles to their corruption probe, put Zardari’s Prime Minister on notice that he would likely be held in contempt for his overuse of dilatory procedures over the last year. Furthermore, the court may seek to strip Zardari himself of presidential immunity thus exposing him to criminal prosecution. Shortly after the court made these statements, a rumor leaked out that the president might move against the court by dismissing some of the more troublesome judges. The court was quick to respond that such an action would be in “direct violation of the constitution” and “tantamount to high treason.”
Article VI of the Pakistani constitution defines “High treason” as follows:.
(1) Any person who abrogates or attempts or conspires to abrogate, subverts or attempts or conspires to subvert the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason.
(2) Any person aiding or abetting the acts mentioned in clause (1) shall likewise be guilty of high treason.
(3) [Majlis-e-Shoora (Parliament)] shall by law provide for the punishment of persons found guilty of high treason.
Whether the Supreme Court would have the jurisdiction or institutional strength to enforce a move against the executive or the legislature (even in the name of preserving the constitution) is questionable however. Furthermore institutional clashes over separation of powers create dangerous vacuums which throughout Pakistani history have often led to military interventions or out-and-out coups.
It follows that this escalating clash between an empowered judiciary fiercely asserting its independence and an embattled president defending himself and his allies from prosecution is a problematic one for Pakistan. On the one hand, the Zardari administration is almost certainly corrupt and the trail of blood and money likely leads into the highest echelons of government power. On the other, the activist court does destabilize a flawed but elected government, one whose failure might fatally weaken the Islamic nation’s fledgling democracy. To insure this democracy’s survival, it will be necessary for both sides to make sacrifices, watering down their institutional agendas in the name of stability and continuity.