The Court Rules in Pakistan

Pakistan has a history of its civilian government being removed from power by the military, and last week the country’s Supreme Court mounted what could be the first judicial coup. As Pakistan faces terrorist challenges, political turmoil and economic crises, the activist Supreme Court has compounded the challenges – ruling that Prime Minister Yousuf Raza Gillani’s contempt-of-court conviction prevents him from serving in parliament. The newly nominated candidate, Makhdoom Shahabuddin, has also been served with an arrest warrant by the Supreme Court. Paula Newberg, Marshall B. Coyne Director of the Institute for the Study of Diplomacy at Georgetown University, points out that the court claims to support democracy, yet ignited another domestic crisis as Pakistan confronts immense foreign-policy challenges with NATO’s impending withdrawal from Afghanistan. Fiery activism and debate could signal movement toward democracy. Criticism of Pakistan’s government, from its own courts or an ally like the US, should come in measured doses. Too much could irrevocably weaken the civilian government. Unmanageable reforms, especially during a difficult transition period, are dangerous and could encourage unknown alternatives to civilian government. – YaleGlobal

The Court Rules in Pakistan

Pakistan Supreme Court’s dogged efforts to reduce corruption could signal democracy – or chaos
Paula Newberg
Thursday, June 21, 2012

Power of the gavel: Supreme Court Chief Justice Iftikhar Muhammad Chaudhry (top) convicted Prime Minister Yousuf Raza Gillani (below) of contempt of Court and pronounced him unfit to hold the office

WASHINGTON: As Pakistan’s talks with NATO over transit to Afghanistan are deadlocked and its fledgling parliamentary system is struggling to stabilize, the country has received a knock from inside. In a move that amounts to a judicial coup d’etat, the country’sSupreme Court has barred Prime Minister Yousuf Raza Gillani from office based on his conviction for contempt of court. The court has thrown the government into disarray, jeopardized domestic political relationships, cast a shadow over the country’s fiscal stability and complicated Pakistan’s exceedingly difficult foreign policy choices. The court’s instructions to President Asif Ali Zardari “to ensure continuation of the democratic process through parliamentary system of government” – language ironic in tone if not intent – implicitly call for fresh elections, even while political authority is far from clear.

This unprecedented judicial action reflects a governance crisis that has been years in the making, the result of intra-governmental disputes raised to the level of war and political conflicts that brook no mediation. The chief justice of Pakistan, appointed years ago by General Pervez Musharraf, has increasingly interpreted judicial oversight to mean activism to the point of intrusion in the daily affairs of government. The Supreme Court – known previously for only retrospective valor by ruling on the wrongdoings of governments after they were long gone – has pursued its own transparency campaign, examining all the daily doings of the state, challenging the price of sugar, the running of cities and the activities of paramilitary bodies. Politicians and intelligence agents, government ministers and party chiefs, local officials and company heads now populate the courthouse steps, called by a chief justice who seems to single-handedly want to save Pakistan from itself by publicizing every allegation of malfeasance, including those he brings himself.

Removing the prime minister is a well-honed practice of military leaders, not judges. Gillani was convicted for refusing to act against the sitting president on issues related to past accusations of corruption. He couched his political choice in terms of protecting the constitutional prerogatives of the presidency – a stance contested by opposition parties, whose petitions against him were upheld, barring him from office.  The Court, unsurprisingly, worded its judgment as ensuring the fundamental rights of citizens “in all matters of public importance.”

These are hard positions to uphold. The sitting People’s Party government, once insistently populist and egalitarian, is saddled with profound public disenchantment over corruption and incompetence. News headlines underscore the depth of discontent: bomb blasts haunt cities and countryside alike, hated drones circle the borderland skies, funds are limited, and electrical power is so scarce that countrywide protest demonstrations have been held since last summer. Karachi’s armed groups have set the city afire, killing thousands, while political infighting has left many Pakistanis and outside observers fearing for the country’s stability.  

The intersections of domestic disturbance and regional disharmony are penetrating and disturbing. “America’s” war in Afghanistan and the army’s cooperation with militant parties as well as raging conflicts at home have confused the familiar categories of public life. For most of the past 65 years, civilian and army leaders have lived in uneasy coexistence: When one side disappointed the public enough, or failed too visibly, the other claimed authority or acceded to serendipitous power. Assassinations, coups d’etat, lost wars and avarice became engines of political change – more cumulative than permanent, and oddly predictable. 

Times have changed. Today, no one in Pakistan calls for the military to seize power. Its reputation has been sullied by failures on the battlefield, paramilitary bodies have been accused of disappearances and murder, and the public treats intelligence agencies as complicit in the country’s pervasive insecurity.  Government is weak, and opposition parties pillory current policy without offering serious alternatives. The playing field has been made bizarrely  level: In the same season that has seen the prime minister removed from office, former Prime Minister Mian Nawaz Sharif has been called to court to atone for organizing a physical attack on the Supreme Court in 1997.

Even so, this is the moment that some in Pakistan chose to embark on a journey meant to bring more democracy, not less. In the past two years, an otherwise vitriolic and obstructionist parliament passed constitutional amendments that could, under more salubrious circumstances, further representative government. It has begun to reform electoral administration and judicial appointments, and is trying to equalize the assets and governance of Pakistan’s provinces. More pointedly – and ruefully, given the Supreme Court’s judgment – parliament curbed the over-reaching powers of the president, who in earlier times would have been the instrument for dismissing parliament.

The tough standards imposed by the court may be welcomed by some, but by its judgment the court has also weakened the parliamentary sovereignty that was the aim of these reforms. Clearly, political progress is not linear, and the government’s mixed messages have set the country politically adrift. 

These efforts are visible in the conduct of foreign policy, an arena certain to be increasingly problematic in the coming weeks and month. Pakistan’s civilian leaders have raised their voices as active and disputatious interlocutors on regional affairs and, by gradually removing foreign affairs from the almost exclusive domain of the military, have vested sovereignty more firmly in parliament. Complicated as this has been for making and executing policy, it seemed to hold some promise for the country’s political future, particularly if rights-respecting democracy were the result. 

But this week’s court judgment – which embarrasses the government and erodes public trust in politics, as it already had in the courts – leaves the country confronting new domestic complexities just when its foreign relationships have become more troubling. Many in Pakistan believe that US pressure stemming from disputes over the Afghanistan war already risk the hard-won role of civilians in foreign policy. That fear, rather than any one policy disagreement, led parliament to demand apologies for the deaths of military officers, argue about transit fees across the Afghan border and protest drone raids. The US-Pakistan relationship is transactional on both sides, and the corrosive effects of war certainly argue for change. When things go awry, as they have once again, it is easy for Islamabad to assume that the US criticism is intended to hamstring parliament and weaken politics. The result – holding partnership for ransom, vocal US impatience with Pakistan and the subsequent suspension of negotiations – leads to mutual contempt, not respect.

No one expects the US to close the door on Pakistan, or that Pakistan's government, despite its complaints about its overbearing US ally, really wants that to happen. US interests are based at once on Pakistan's utility – for assistance in NATO's withdrawal from Afghanistan, access to resources and a location inevitably described as "strategic" – but also fears that Pakistan's nuclear weapons, tactical carelessness regarding extremism, and intermittent, strategic regional belligerence will breed uncontrollable global dangers. Both Pakistan and the US have profited selectively from this understanding for decades.

The Supreme Court’s opinion muddies the waters by challenging Pakistan’s delicate civil-military balance, casting doubt on the neutrality and impartiality of the courts, and testing the fundamental constitutional relationships among the legislative, executive and judicial branches of government. For all its verbal obeisance to democracy, the court has forced the country into yet another domestic crisis when it had yet to muster the tools to solve its pressing foreign policy problems. With elections in both the US and Pakistan poised to change their terms of engagement, one more misstep could be costly indeed.


Paula Newberg is the Marshall B. Coyne Director of the Institute for the Study of Diplomacy at Georgetown University.

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