The Judiciary: What can Pakistan learn from America?

Guest article by Athar Osama

That Pakistan is in the midst of a judicial crisis is no secret to anyone living in Pakistan and those abroad who like to follow the country’s history, which reads almost like a tantalising political thriller. What is much harder to understand is how to get out of it.

The current Pakistan People’s Party (PPP) government came to power primarily as a result of the “sympathy” vote gained after the assassination of Benazir Bhutto. It was also a result of an “illegal” agreement made by late Benazir Bhutto with Pakistan’s then President and Chief of Army Staff, General Pervez Musharraf. The ironically named “National Reconciliation Ordinance” (NRO) pardoned all charges against any political leader willing to cut a deal with the general.

Needless to say, the current ruling coalition was the major beneficiary. Musharraf was interested in holding on to power at any cost, and it didn’t matter if he had to cut a deal with the politicians, put a sitting Chief Justice under house arrest (as he did in March 2007), or sack the entire superior Judiciary (in November 2007).

A “lawyers’ movement” to reinstate the sacked judges ensued and ultimately, in coalition with like-minded political parties and civil society at large, resulted in the restoration of the constitution and reinstatement of the judges. An emboldened, free, and empowered judiciary found the NRO in violation of the constitution in 2009 and asked the government to re-open corruption cases against the pardoned politicians, including the sitting President and Benazir’s widower, Asif Zardari.

It has been three years since that judgement, and the cases have made their way through the judicial system, right to the top. Through these years, the government has done everything within its means to stall and subvert inquiries set up by the Supreme Court and the Court’s attempts to get its orders implemented. Everything within legal means, that is, to try to come clean with following the letter of the law but not the spirit.

Until recently when they crossed some red lines and, as they say, “the shit hit the fan.” The Supreme Court found an elected prime minister in contempt of court, and that resulted in his sacking. This obviously doesn’t end here. The Court’s order and intent to ensure implementation of its orders remains as it is. The new prime minister will either comply with the Court’s order to re-open corruption cases against his boss – the President – or run the risk of becoming another fall guy to protect the man at the top.

Despite the four-year-long nightmare, I have no doubt that democracy can be the only way forward, and that different institutions must not only co-exist but also effectively play the role of keeping checks and balances on each other.

I am certainly no fan of this government, nor do I bestow a “holier than holy” status to the judiciary. Even though, I believe that the judiciary’s actions may not have been without some moral and legal justification, I find its insistence on continuing to play musical chairs with prime ministers, ministers, and president over these past eight months a bit hard to digest. While some applauded the Supreme Court’s decision to disqualify Prime Minister Gilani, I am concerned that, even though it may be right, should it continue to go down this path, it may end up squandering the trust and goodwill it has created over the years.

So how might this situation be defused?

We are a nascent democracy, and the norms and traditions of judicial independence and propriety are still being shaped. I submit that perhaps there is room to learn from the experience of other countries.

Here Chief Justice Iftikhar Chaudhry may be well advised to draw from U.S. constitutional history and the strategies and conduct of Chief Justices in the U.S. legal tradition, in particular from two decisions written almost two centuries apart – the first being Marbury v. Madison by John Marshall, the first Chief Justice of the United States, and the second, recently announced States vs. Sebelius (the Obamacare case) by current Chief Justice John Roberts..

In 1800, Democratic-Republican Thomas Jefferson defeated Federalist John Adams to become President of the United States. After his defeat and before he left office, Adams signed certain commissions for judicial appointments that were to come into effect before he left. Circumstances did not allow some of these to be delivered in time, however, and on taking office Thomas Jefferson refused to have them delivered. One of these, William Marbury, who was appointed as a Justice of the Peace, failed to receive his commission and went to the Court against Secretary of State James Madison, whose responsibility it was to deliver his commission.

On February 24, 1803, the Court rendered a unanimous (4–0) decision that Marbury had the right to his commission, but that the court did not have the power to force Madison to deliver it. The details of the case are not material to the situation at hand. What is important is the end result. In finding the government at fault, the Court gave a clear ruling on the case, rather than giving a confused or watered-down decision or beating around the bush.

However, even in accepting the limitations of his Court, CJ Marshall managed to advance the cause of an independent judiciary much farther. In his decision he examined, for instance, what happens when an Act of Congress conflicts with the Constitution.

Though not without its critics, Marbury v Madison is widely seen as a landmark decision that affirmed the principle of judicial review and helped define the boundary between the constitutionally separate executive and judicial branches of the American form of government.

Just over two centuries later, John Roberts presided over one of the most hotly debated and fiercely watched cases, on Obama’s healthcare reforms. Here, even though there was not a defiant executive, the sheer size and impact of the legislation, coupled with polarisation of the political scene in an election year, made this a very important case.

Like Chief Justice Marshall before him, Chief Justice Roberts handed down a stunning decision that required him to side with the government of the party opposite to his own political affiliation.

Like Marshall, he (almost) found the government on the wrong side but used political expediency and a lot of wisdom to steer clear of thrusting the country into a serious crisis. Like Marshall, he affirmed and created important legal principles, in this case the principle of judicial restraint. And like Marshall, Roberts did advance his own political agenda, but in a manner that enhanced rather than diminished the reputation of the Court.

Keeping Pakistan’s current judicial crisis in perspective, several important features stand out.

In Marbury v. Madison, the Marshall Court did not mince words in giving the verdict, thus preferring legal clarity over expediency, but then also plainly acknowledging its inability to enforce.

Second, it demonstrates how judiciary, when pitched against the executive that is unwilling to follow its verdict, must intricately avoid conflict with other branches, to avoid causing harm not only to the country but also to itself.

Finally, in its wisdom the Marshall Court transformed a handicap (its inability to enforce and a potential showdown with Jeffersonians) into an opportunity to advance the agenda of judicial independence, thus enhancing the power of the Court.

There are ample lessons in Marbury v. Madison and States v. Sebelius for the Honorable Justices of Pakistan’s Supreme Court to draw upon and find it within themselves to do the right thing in the final hours of this government.

John Roberts probably said it best in his majority decision on States vs. Sebelius when he wrote, “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,” i.e. the judiciary must go to great lengths to uphold the doings of a duly elected legislature, even if it has to look the other way.

In pursuing truth and justice against an executive unwilling to obey, Pakistan’s Supreme Court has inadvertently taken Pakistan to the brink. It must now also bear the responsibility of bringing the country back to at least a semblance of governance and normalcy.

The Court must weigh the benefits of what it is trying to achieve in the last eight months of this government against the political and economic costs of the musical chairs of ministers, prime ministers, and presidents that this country can ill afford.

The Chaudhry Court has been responsible for the rebirth of the High Judiciary in Pakistan, and it probably still has some time to pull a Marbury v. Madison that will – with much wisdom – take the country out of the current judicial crisis, while advancing the rule of law in the long run.

This Supreme Court has taught Pakistan how to stand before a ruthless, power-hungry dictator. It must also now lead the way in demonstrating how to do the delicate dance – of checks and balances and respect and accommodation – among the three pillars of a democratic government, irrespective of how bad it may be.

Dr. Athar Osama, an avid student of constitutional history, holds a Ph.D. in Public Policy from The RAND Corporation and is the founder of UnderstandingPakistan.com. Email: Athar.Osama@gmail.com.

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