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Academic: Legal Theory Blog
Ghias on Judicial Independence in Pakistan
By Lawrence Solum
Shoaib A. Ghias (University of California, Berkeley, School of Law) has posted Miscarriage of Chief Justice: Lawyers, Media, and the Struggle for Judicial Independence in Pakistan on SSRN. Here is the abstract:
Pakistan is going through a historic constitutional and democratic moment. On March 9, 2007, Chief Justice Iftikhar M. Chaudhry was suspended and later manhandled. These events sparked an unprecedented mobilization of lawyers and judges to restore the chief justice. The media coverage of protesting lawyers dressed in black coats, drenched in blood, made headlines not only in Pakistan, but also around the world. On July 20, Chaudhry was reinstated, but not for long. When Musharraf held a presidential election on Oct. 6, the Supreme Court blocked the official result to review his eligibility to run for office while in army service. Before the Court could announce the decision, on Nov. 3, General Musharraf suspended the Constitution, dissolved the Supreme Court, and declared martial law ("emergency rule"). Musharraf cracked down on lawyers and judges, and consolidated his power. Since then Yousaf Raza Gillani of the Pakistan People's Party (PPP) has taken office as prime minister under Musharraf as president after the February 18, 2008 parliamentary elections. But the question of restoring the pre-emergency bench remains unresolved.
This paper looks at the rise and fall of judicial power in Pakistan, focusing on the Chaudhry Court to address two questions. First, how did the Court expand judicial power leading to a confrontation with the Musharraf regime? Second, how was the legal complex (the bench and the bar) mobilized in the struggle for judicial power? I situate my questions in the public law scholarship on judicial power and legal complex. The paper presents a brief constitutional and political history of Pakistan. I argue that the Chaudhry Court intervened in governance at a moment when economic liberalization exacerbated corruption. This intervention spilled over into political assertiveness by the Court on encouragement by the media and finally produced regime backlash. I find the pre-crisis relationship between the bar and the bench crucial to explaining the extraordinary mobilization of lawyers to restore Chaudhry. The bench not only protected the autonomy of the bar, but also intervened in bar elections to ensure a pro-bench/anti-regime bar leadership. After Chaudhry's restoration, the judicialization of politics (including Nawaz Sharif's return, Benazir Bhutto's "deal" and NRO, and Musharraf's presidential election) led to the imposition of martial law on Nov. 3. The paper ends with a summary of post-election developments.
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