Judicial Coup in Pakistan

For all the talk about the proper role of an independent judiciary and accusations flying that the President was meddling in judicial affairs, is this really the case? Two prominent American lawyers say no, that actually the case is that the judiciary has acted improperly. David B. Rivkin Jr. and Lee A. Casey, Washington, D.C.-based attorneys who served in the Department of Justice during the Ronald Reagan and George H.W. Bush administrations, wrote in today’s Wall Street Journal that it was Chief Justice Chaudhry who acted outside the boundaries of his office.

According to these two legal experts, the Chief Justice has been acting against the proper role of an independent judiciary and outside the boundaries of his office as part of a transparent political campaign.

Any involvement in politics by a sitting judge, not to mention a chief justice, is utterly inconsistent with an independent judiciary’s proper role. What is even worse, Chief Justice Chaudhry has been using the court to advance his anti-Zardari campaign.

The most recent improper act by the judiciary was, of course their opporsition to the President’s appointments. Whatever one thinks of Zardari or the appointments that he notified, there is no question that, as President, he acted constitutionally. While there have been some prominent lawyers that made some legal case against this, their reasoning was so tortured as to be embarrassing for them. The American lawyers Rivkin and Casey, not invested in Pakistan’s politics, can see right through these claims.

It is well-known in Islamabad that Mr. Zardari’s real sin was political, as he dared to appoint people unacceptable to the chief justice. Since consultation is not approval, Mr. Chaudhry’s position appears to be legally untenable. Yet Mr. Zardari, faced with demonstrations and media attacks, let Mr. Chaudhry choose a Supreme Court justice.

Many people say that the government is acting in a way that no other executive in a democracy would behave. But this is not true. Consider the observations of the American legal experts.

When U.S. President Barack Obama sharply challenged a recent Supreme Court decision in his State of the Union address, prompting a soto voce rejoinder from Justice Samuel Alito, nobody was concerned that the contretemps would spark a blood feud between the judiciary and the executive. The notion that judges could or would work to undermine a sitting U.S. president is fundamentally alien to America’s constitutional system and political culture. Unfortunately, this is not the case in Pakistan.

Supreme Court Chief Justice Iftikhar Mohammed Chaudhry, the country’s erstwhile hero, is the leading culprit in an unfolding constitutional drama. It was Mr. Chaudhry’s dismissal by then-President Pervez Musharraf in 2007 that triggered street protests by lawyers and judges under the twin banners of democracy and judicial independence. This effort eventually led to Mr. Musharraf’s resignation in 2008. Yet it is now Mr. Chaudhry himself who is violating those principles, having evidently embarked on a campaign to undermine and perhaps even oust President Asif Ali Zardari.

This political campaign by the judiciary has serious consequences, and allowing the anti-democratic forces that are encouraging the judiciary in its political campaign would do more than unseat the President. The actual result would be to dismantle democracy in Pakistan for the foreseeable future.

There is no doubt that the chief justice is more popular these days than the president, who has been weakened by the split in the political coalition which brought down Mr. Musharraf. Former Prime Minister Nawaz Sharif is now a leading opponent of the regime. There is a strong sense among the Pakistani elites that Justice Chaudhry has become Mr. Sharif’s key ally.

The fact that Mr. Chaudhry was a victim of an improper effort by former President Musharraf to replace him with a more pliant judge makes his current posture all the more deplorable. His conduct has led some of his erstwhile allies to criticize him and speak of the danger to democracy posted by judicial meddling in politics. The stakes are stark indeed. If Mr. Chaudhry succeeds in ousting Mr. Zardari, Pakistan’s fledgling democracy would be undermined and the judiciary’s own legitimacy would be irrevocably damaged. Rule by unaccountable judges is no better than rule by the generals.

This is not a path forward for Pakistan, or a defense of democracy or an independent judiciary. This is only a path backward. And that is not a path we need to take.