Blog of the International Journal of Constitutional Law

Courting Trouble in Pakistan: the Next Chapter

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.

–Daniel Lansberg-Rodriguez


One response to “Courting Trouble in Pakistan: the Next Chapter”

  1. stevefazek Avatar

    With a government like Pakistani it is always interesting. All branches of government seem to distrust each other and will regularly try to overthrow each other.
    I think it is just a part of having a weak constitution and the fact that corruption is common there. While a part of me views a person who does something that is not morally right because its the rule of law as a weak thoughtless sheep. I still worry about the chaos if people stopped following the law because they didn’t like the person or the law such actions are common with weaker more corrupt governments. Another problem is having power too fractured where people are fighting for more power.
    This leads me to believe it is very hard to balance power with safety. I think in the US the president has too much power, head of the military, head of the state and government as well as the head of his political party. Such as all the combat operations that we have had over the past 60 years did not require congresses approval just their money.
    In most democracies that are stable regardless if its a parliamentary or a Representative republic such as ours these position would be held by 3-4 people not just one.

    While we see outwardly the president of Pakistani throwing judges out of office and the judges trying to throw him out. We do tend have have the same thing more or less, presidents picking less than credible judges to run our courts, the judges ignoring 100 years of case law and prior judgments for their own opinion hello peoples united? You mentioned what Pakistani needs to do which is ironically exactly what our government does, we sacrifice many things for the stability it will bring.

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