Pakistan’s constitutional war continues

First off, these are no doubt good times for the comparative study of constitutions. A blog devoted to comparative constitutional law and courts would have been a near-fantasy merely a decade ago. More than anything else, its establishment reflects the growing interest and tremendous advancement in the comparative study of law and courts over the last few years.

My “landmark decision of the week” title goes to the Supreme Court of Pakistan, which ruled on Friday, July 31 that the state of emergency imposed by former President Pervez Musharraf in 2007 was unconstitutional and declared invalid the appointments of judges he made during that period. The ruling was hardly surprising; the 14-member bench that delivered the decision was headed by the reinstated Chief Justice Iftikhar Mohammed Chaudhry, whose attempted ouster by Musharraf spurred much of the unrest that led to the Musharraf’s downfall. The ruling is filled with acclaim for judicial independence, democracy, and other such great ideals. “The constitution is supreme, and this decision will strengthen democracy and democratic institutions,” Chaudhry wrote in his decision. That the reinstated CJ Chaudhry presided over the Court that decides the legitimacy of his own ousting was not considered by the Court as an obstacle to rendering an unbiased ruling. The decision questions the legitimacy of the former CJ Abdul Hameed Dogar’s appointment as Chief Justice following the attempted ousting of CJ Chaudhry. The court added that rulings made by the judges who were improperly appointed could still stand, and told Parliament to decide which of the laws that Musharraf pushed through during the unconstitutional emergency could remain on the books. Musharraf (who resides in London) ignored a summons to appear before the Court or send a lawyer this week to explain his actions. Either way, the ruling may be viewed as a strong judicial statement against future suspension of the constitution by the military – historically, a key player in Pakistani politics.

It is important to note that since 1990 Pakistan has known several major regime changes and the Pakistan Supreme Court has played a key role in each of these radical transitions. The Court’s handling of politically charged cases over the last two decades provides a paradigmatic illustration of the strategic approach to judicial behavior. In May 2000, for example, it drew upon the doctrine of “state necessity” and the principle of salus populi suprema lex to unanimously validate the October 1999 the Musharraf-lead coup d’etat and ousting of PM Nawaz Sharif as having been necessary to spare the country from chaos and bankruptcy.

And there is another interesting aspect to the ruling. One contested measure that could come up for review is an ordinance – signed by Musharraf before the emergency – that granted amnesty in serious corruption cases to Zardari and his wife, the late former Prime Minister Benazir Bhutto. (The corruption charges relate to Bhutto’s era as prime-minister). This possibility plays to the hands of Nawaz Sharif (leader of the Pakistan Muslim League-N party) – the main political rival of Zardari (leader of the Pakistan People’s Party and President of Pakistan as of September 2008). That Nawaz Sharif’s supporters joined the authentic “lawyers for democracy” movement and went out to the streets a year ago to demand Chaudhry’s reinstatement therefore might have been driven by more than a genuine commitment to civil rights and judicial independence. And this may also explain why Zardari himself was less than enthusiastic to unconditionally reinstate Chaudhry as Sharif demanded. Following the February 2008 elections, Zardari supported reinstatement only as part of a broader constitutional overhaul that would limit judicial power and the Chief Justice’s term.

So while Pakistan’s army attempts a crackdown on the Taliban and while its regional archrival (India) displays its nuclear submarine mega-project, the fierce constitutional war between Pakistan’s political elites marches on. Please stay tuned.

RH