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Challenges for Chaudhry: The Way Ahead for Pakistan's Reinstated Chief Justice

JURIST Contributing Editor Ali Khan of Washburn University School of Law says that while newly-reinstated Pakistani Chief Justice Iftikhar Chaudhry must continue to hold his country's Establishment accountable for breaches of the constitutional rights and freedoms of Pakistani citizens, he and his Supreme Court should henceforward steer of political questions" arising out of disputes between the country's Executive and Parliament...

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In reinstating Supreme Court Chief Justice Iftikhar Chaudhry and numerous other judges whom Army dictator Pervez Musharraf dismissed in 2007, the Pakistani Establishment - composed of party bosses, generals, spymasters, financiers, and bureaucrats - has restored the so-called independence of the judiciary, at least for now. Since the birth of Pakistan in 1947, the Supreme Court has been the most acquiescent branch of the government. The Court has frequently supported military and civilian strongmen, legitimizing constitutional subversions and perpetuating the power-grip of the Establishment. The Court?s dubious history has generated an unprincipled jurisprudence of expediency.

Holding the Establishment Accountable

Defying this history, Chief Justice Chaudhry has come to represent judicial independence and constitutional boldness in holding the Establishment accountable. Unfortunately, Chaudhry gained this heroic stature with less than clean hands. In 1999, Chaudhry swore to uphold the Military Order which overthrew a democratically elected government. In 2000, Chaudhry - sitting as a Supreme Court Justice - legitimized Pervez Musharraf?s military coup and the concomitant constitutional subversion. Though controversial and tainted, Chaudhry nonetheless communicates a credible belief that the Supreme Court can be free and people-friendly.

Before dismissal, Chief Justice Chaudhry rendered a number of disquieting decisions. These decisions challenged the Establishment?s economic and foreign policies derived from avarice and cowardice. In foreign affairs, for example, the Establishment has been a cowardly ally of foreign intelligence agencies. During the Musharraf regime, which had made a compact with the Bush-Cheney administration to prosecute a lawless war on terror, the constitutional rights and freedoms of Pakistani citizens were severely compromised. Hundreds of Pakistanis disappeared with no trace ? a crime that domestic and foreign intelligence agencies jointly perpetrated in hunting down real and imagined terrorists. By demanding accountability for the missing persons, the Chaudhry Court refused to reduce constitutional rights and liberties to seasonal goodies available only in good times.

After reinstatement, Chief Justice Chaudhry must continue to hold the Establishment accountable. This accountability is particularly critical amidst the hype of terrorism. The Supreme Court led by Chaudhry cannot presume that the democratically-elected government holds a valid license to compromise constitutional rights and freedoms to fight terrorism. No government may lawfully commit torture, engage in extra-judicial killings, and allow foreign agents to abduct persons with or without the connivance of domestic intelligence agencies. Even deportations and extraditions of ?terrorists? must require due process of law. The Chaudhry Court must protect Pakistani citizens from the Establishment?s crass utilitarian calculus under which constitutional rights are often forfeited as a quid pro quo for receiving foreign aid. The Chaudhry Court must establish a clear principle that no foreign policy can trump constitutional due process or fundamental rights and freedoms.

Avoiding Political Questions

In holding the Establishment accountable, however, the Chaudhry Court must observe what is known as the political question doctrine, which ?forbids the courts from hearing cases that would require them to rule on mattes not fit for judicial determination.? Disputes between the Executive and the Parliament for the most part fall under the political question doctrine. Since Presidential powers under the Pakistan Constitution are unsettled and subject of controversy, the Court need not enter this political minefield. Let political forces settle whether the Prime Minister or the President should exercise the key constitutional powers, including the power to appoint the Chief of the Army Staff. It is not for the Chaudhry Court to shape the power structure of the federal government. Even the popular mantra of ?Parliamentary Sovereignty? must not tempt the Court to hear political disputes. The Court is less free and is viewed as politicized when it aligns itself with one political ideology against the other or with one branch of the government against the other. The Court must avoid any tilt toward the President, the Prime Minister, or the Parliament.

Judicial Corruption and Incompetence

While maintaining its constitution-based neutrality toward other branches of the government, the Chaudhry Court must nonetheless fix its own house, that is, the judiciary itself. A popular perception permeates Pakistan that judges are corrupt. Judges take bribes. They decide cases on the basis of beneficial contacts that litigants offer rather than on merit. To eradicate corruption, the law and order approach will not work. Judicial ethics and anti-bribery laws are necessary but insufficient. The Supreme Court, as the supervising court, must obtain respectable salaries for judges so that they can maintain an honorable standard of living. Lower courts judges, burdened with the most cases and closer to the people, need special protection. In the class-based Pakistan, their standard of living is often ignored. The judiciary will be unable to gain respectability unless judges across the board receive respectable compensation.

In addition to corruption, incompetence is the other big problem that plagues the judiciary. Part of the incompetence comes from a lack of continuing education for judges. The bench experience is insufficient for judges to remain well-informed. Even in the United States and Canada, where the judiciary is well-developed, educating judges is a new phenomenon. For years, continuing experience rather than continuing education was deemed sufficient for judicial competence. It is now apparent that judges turn overly myopic and even mechanical when they receive no fresh educational insights into the art and science of dispute resolution. In this regard, the Supreme Court should consider establishing permanent educational bonds between the judiciary and the academy. Furthermore, the Court may also consider establishing transnational judicial contacts so that Pakistani judges can benefit from judicial training in more developed countries.

Affordable Justice

Finally, the Pakistan Supreme Court, under the leadership of Chief Justice Chaudhry, must find ways to provide affordable justice to the poor people of Pakistan. Overly complicated procedures inherited from the nineteenth-century common law need massive revision. Rules of evidence need changes for a more efficient litigation. Alternative dispute resolution methods derived from Islamic law may be infused to mitigate adversarial procedures. These reforms are not easy. But the Chaudhry Court can set in motion a process that would study issues and provide solutions to fix the currently inefficient, even dysfunctional, litigation model.

Ali Khan is professor of law at Washburn University School of Law in Topeka, Kansas, and the author of the book, A Theory of Universal Democracy (2003). Many of his publications are available here.

Full post as published by JURIST - Forum on March 19, 2009 (boomark / email).