Necessity is the sister of tyranny, and nowhere is such a bond stronger than in Pakistan. In 1958, just eleven years after Pakistan’s founding, Chief Justice Muhammad Munir invoked the “doctrine of necessity” and “test of efficacy,” effectively allowing the military to justify its takeover by arguing that the country needed it. It also set a precedent that subsequent courts in the latter half of the twentieth century followed.[i] When General Zia ul-Haq and Pervez Musharraf staged military coups, the court acted as a tool of the state, establishing legality for the extra-judicial actions but, in turn, weakening its own credibility. Up until the early 2000s, the court remained a puppet of the executive branch.
Years later, in September of 2007, the political scene had dramatically shifted. People in suits and ties came out in major cities in Pakistan and demanded the reinstatement of Supreme Court Chief Justice Iftikhar Chaudhry, who refused to resign despite pressure from Musharraf. Musharraf himself was rapidly losing momentum; the country was witnessing its first widespread demonstration against the military. Carlotta Gall of the New York Times describes the scene:
As [the protesters] marched the hundred yards from the Supreme Court down Constitution Avenue to the Election Commission, police officers with helmets, shields and long sticks blocked their way. Lawyers began hurling stones, and the officers retaliated, throwing the stones back and firing tear gas, and then charging and beating protesters.[ii]
Eventually, the movement led to the resignation and flight of Musharraf out of Pakistan. The ouster of a dictator by a civilian was unprecedented in Pakistan. At no other time in history did the judiciary have such support from the people and the military have its power so seriously challenged. Chaudhry’s court had shifted the political order in Pakistan, successfully undoing a decades-old relationship between the judiciary and the military.
The momentum continued, and Chaudhry’s power grew with it. Today, Pakistan is on the verge of making democratic history by having the first peaceful transition of power between elected governments. But no matter who is elected—Bilawal Zardari’s PPP, Nawaz Sharif’s PML-N, or the Imran Khan’s rookie party—chances are that they will operate under the shadow of the Supreme Court. Just in the past two years, the Court has ordered the dismissal of two prime ministers under President Asif Ali Zardari, and there is no sign that it will scale back its ambitions. Dawn’s political analyst, Cyril Almeida, reflected on the growing power of the judiciary, writing, “First it was elbows out; now it’s come out swinging.”[iii]
Is the court overstepping its rule? Where is the line between judicial activism and judicial coup d’états? In examining the question of its future, it is crucial to look back to see what brought the court to this critical juncture—and how an institution that used to be little more than a rubber-stamp transformed into a crusader against corruption and abuse.
The Pre-Chaudhry Courts: Calculated Prudence and Failed Attempts to Revolutionize
The Pakistani constitution has been rewritten three times and, in all these versions, judicial independence has, in principle, been guaranteed.[iv] In fact, under the current constitution, the President cannot fire or appoint any judges; the power to select judges belongs to the Judicial Commission of Pakistan, which consists of the Chief Justice, the four most senior judges of the Court, a former Chief Justice or Judge nominated by the incumbents, the Federal Minister for Law and Justice, the Attorney-General for Pakistan, and a Senior Advocate of the Court (nominated by the Pakistan Bar Council).[v] Given the makeup of the Commission, if the Court insists on independence, it could get it: there are only two executive branch members in the Commission, compared to the six derived from the judiciary.
In some particular cases, the independence guaranteed in the Constitution has translated to fair rulings. Throughout the latter half of the 20th Century, the Court has maintained its impartiality on some important issues, including ruling against the executive branch to protect due process, expand privacy rights, and suspend the use of military courts for civilians. It also forayed into social equality—when, in Ghulam Ali v. Mst Ghulam Sarwar Naqvi (1990), the Court ruled in support of women’s education, affirming that if enough women were qualified for acceptance into college, a special gender quota could not restrict them from attending.[vi] These cases demonstrate that the Court was not absolutely corrupt before Chaudhry’s arrival; in several key situations, it lived up to its independence promised in the Constitution.
However, when it came to issues of constitutionality of regimes, the Court became the lackey of the military. The reason for the judges’ bias was that if the Constitution was abrogated or ignored under military rule, they were not protected. Without this protection, they were afraid of the power that military rulers held over them: to fire them, to imprison them, or even to threaten their lives. Instead of openly resisting these dictators, they developed a theory of prudence, one that traced its roots back to Munir. The reasoning went like this: if they refused to endorse the coup, the dictator would replace them with even more regime-friendly judges—which would damage the institution irreparably; if they legalized the coup, however, they would be able to serve as watchdogs over the military regime and step in if an egregiously illegal act was attempted. In short, their legalization of these takeovers was driven by their wish to prevent the concession of full judicial authority to the executive branch.
The reasoning can most clearly be seen in the judiciary response to Zia’s 1977 coup. When Zia took over, he ordered the judges to take a new oath of office that did not mention any loyalty to the existing constitution.[vii] Perhaps, because the enforcement of the oath was unclear—it did not technically repeal the previous oath they had sworn—the new oath was taken without any hesitation or backlash. The judges went through with the oath without any hesitation; civil society was similarly silent. Justice K. M. A. Samdani summarized the judges’ thoughts, writing, “…it was perhaps not advisable at that stage to precipitate a confrontation between the judiciary and Martial Law regime.”[viii]
If this attitude was meant to save judicial power for a more critical time, then this grand plan failed. Until 2007, the judiciary under military rule had never successfully confronted the regime on issues that threatened the military’s power. It had not dared to release itself out of the confines of judicial prudence, a box that it drew around itself for protection. And while the Court thought that drawing this box around them would protect the judiciary from corruption, their actions instead diminished the credibility of the institution. The Court endorsed extra-judicial actions, and no matter how infrequent these endorsements were, they threatened the very rule of law that the institution intended to uphold. In the words of Shoaib A. Ghias, the pre-Chaudhry courts were known to “validate everything, legitimize nothing.”[ix]
Perhaps this lack of formal resistance was due to a mistaken conventional wisdom that judges could not marshal enough popular support to overrule a dictator’s decision. Whit Mason put it simply: judges “had always feared the unknown: what would happen if they stood up to the bullies?” He added, “They had been oblivious to the potential role of public support if they took a principled stand.”[x] While this may have been true for many judges—especially those who were appointed for political reasons—Mason’s account unfairly caricatures the judiciary as pushovers and officials who are interested in self-preservation over anything else. The truth is more complicated than that, since there have been multiple instances through history where judges have attempted to fight takeovers and failed.
In 1977, for example, when Zia staged his coup, the Chief Justice of the Supreme Court Yaqub Ali butted heads with the Chief Martial Law Administrator, a senior official in the regime, after Ali agreed to rehear a petition that threatened the legitimacy of the revolution. When the differences could not be resolved, Zia decided to remove him by proposing amendments that forced his retirement. Despite this pressure, the Chief Justice refused to budge.[xi] However, unlike Chaudhry, his refusal to back down did not galvanize any popular grassroots support.
Ali’s case is not the only one in pre-2007 Pakistani history. The other instances when the judiciary tried to reassert itself similarly failed. That, of course, begs the question of why Chaudhry succeeded when his predecessors did not.
In the next section, I explore the key factors that made Chaudhry’s rebellion different—arguing that civil society (especially the Bar), the expansive independent media, along with Chaudhry’s pre-rebellion image and political tactics, were the main contributors to the campaign’s success.
Chaudhry’s Defeat of Musharraf: The Drama, The Man & The Backdrop
The rebellion in March 2007 was widely televised. In front of a nationwide audience, Musharraf summoned Chaudhry to his official residence. After gauging how much of an activist Chaudhry had proved himself by investigating his regime’s illegal detentions, Musharraf was afraid that Chaudhry would eventually go after him. Chaudhry was no longer the regime loyalist that Musharraf had imagined he would be, and that meant that he would have to go. Therefore, on March 9, 2007, Musharraf stood in front of Chaudhry, with his prime minister and intelligence chiefs by his side. Clad in his military uniform, Musharraf ordered Chaudhry to dismiss himself from office. Chaudhry refused. His refusal was caught on camera, as was Musharraf’s shock. Angered, Musharraf imprisoned Chaudhry in a cell and issued a presidential order stipulating that Chaudhry was suspended from office.[xii]
That action tipped the first domino in Musharraf’s fateful tale. Musharraf’s presidential order had sparked the organization of protests of lawyers in major cities, which eventually spread throughout the country. People in black suits and ties faced off against law enforcement officials, enduring beatings, tear gas and propaganda by the regime. Civil society—from NGOs to the general media—believed that Chaudhry represented the cause of restoring justice and rule of law to the country. Approximately five days after his suspension, Chaudhry was forced to make an appearance at the Supreme Court for a hearing. Instead of riding in a police car like most criminals did, he decided to walk to the Court. The public watched from the sidewalk. During the walk, however, security personnel grabbed him by the hair and threw him headfirst into the police car. The public was appalled. Most importantly, these actions were caught on film and broadcast throughout the country. These broadcasts only added to the passion of the movement.
The rest, as they say, is history. Protests, dubbed the “Lawyer’s Movement” to recognize the critical role that the legal profession played, spread like wildfire through the nation. In July 2007, Chaudhry was restored to his position after a Supreme Court ruling annulled Musharraf’s order. This ruling was largely driven by public pressure. But in 2008, history repeated itself when Chaudhry decided to take up a case challenging Musharraf’s eligibility to run for reelection, and Musharraf declared a state of emergency. This state of emergency granted him powers to suspend the Chief Justice, which he did. Chaudhry, again, became the center of a reenergized Lawyers’ Movement. The demonstrations spread throughout the country and climaxed on July 2008 with the “Long March” from Karachi to Islamabad, led by Chaudhry himself. Due to the intense public backlash over his state of emergency, Musharraf was forced from office and fled the country.
Chaudhry was not always an icon for change. As a judge on the Supreme Court in 2000, he had reviewed and legitimized Musharraf’s coup. [xiii] But as he grew in stature, and took the helm of the Supreme Court in 2005, he slowly became known as a popular hero among Pakistanis. He went to great lengths to test the limits of his power in defending the common man. He used his suo moto powers—which allowed him to establish authority in a case on his own, without the need for another party to file a suit—in order to examine issues that burdened the populace. These investigations would often lead him to rule in defense of the people’s rights, in favor of relief for victims, or to expand justice for citizens. As time went on, he expanded his use of the suo moto notices, and even began investigations based on letters and newspaper articles. He inserted himself into the smallest local matters, such as a disappearance of a child—a case in which he proceeded to call police officers by going up the chain of command until he received the answers that he wanted.[xiv]
Chaudhry did not want to make a bold entrance and directly confront Musharraf, so his activism began in the economic rather than political arena. His interventions were possible because regulations and government oversight had not caught up with the unprecedented economic growth under Musharraf’s rule. For example, when the earthquake hit in October 2005, causing tens of thousands of deaths and tremendous infrastructural damage, Chaudhry heard a case that claimed that the Capital Development Authority (CDA) had been negligent in enforcing code, causing the collapse of a residential tower in Islamabad. Instead of limiting his decision to the case, Chaudhry decided to use his suo moto powers to expand the scope of his investigation to study earthquake damage as a whole and the state of relief efforts. The result of the investigation was that provincial officials were forced to provide reports about their regulations and relief efforts. When these relief efforts were not up to par, the Court would mandate more help for the earthquake victims. After defending the victims of the earthquake, Chaudhry forayed further in the economic sector and pursued a case that ended up in deregulation of price controls.[xv]
By pursuing issues in the economic sector, Chaudhry knew he could avoid a major confrontation with Musharraf. His cases involved smaller political figures—local ones in particular. He realized that despite his growing power, he could not afford to risk being seen as a threat to the regime. After all, Musharraf did not suspect that Chaudhry would be disloyal to him, because he had been part of a Court that legitimized his rule in the first place. But as time went on, Chaudhry tested and pushed at the limits bit-by-bit. The economic interventions were the start; then came the illegal detentions case, which was the turning point.
When Chaudhry expanded his jurisdiction from economic questions to basic human rights, Musharraf quickly took notice. Musharraf had begun illegally detaining people during the US “War on Terror.” The problem, however, was that human rights organizations pointed out that most of the detainees were not Al Qaeda or Taliban terrorists, but political enemies of the regime, especially those from Baluchistan. Chaudhry took a personal interest in this case, and started investigating the whereabouts of missing people, resulting in twenty people being found. Emboldened by the success—which had gone viral in the media—this led to an order by the Supreme Court for government officials to trace other disappearances.[xvi] The case of illegal detentions moved from the local to national level, causing Chaudhry to directly confront senior members of Musharraf’s regime. Musharraf, of course, was wary, and started to question Chaudhry’s loyalty to him. Much more than the outcome of the illegal detentions, Musharraf was afraid of what Chaudhry would rule on a potential case concerning his eligibility to run in the October 2007 presidential election. The media outlets and civil society had been abuzz with rumors that Chaudhry was about to take up the case, and according to a strict reading of the law, Musharraf would probably be ineligible. Out of fear, Musharraf suspended Chaudhry the next day, and the Lawyers’ Movement began.
Throughout the ordeal, Chaudhry retained the ability to fight for the everyday, Pakistani man despite his lack of elected office. He could use the law and expand the traditional judicial power sphere to defend citizens and raise the standard of government’s duty to its people. He also realized that the law was a very distant concept if it was not applied to everyday concerns of the people. Thus, he expanded the court’s power, because of his knowledge that Pakistanis are much more interested in government’s ability to offer essential services than the structure of government itself. According to a 2009 national poll, Pakistanis had “high expectations” that courts would be independent of political or military influences. However, the reason for these expectations was not because Pakistanis valued democracy—only twenty percent believed that the military should never be able to stage a coup—but because they believed that the courts could advocate and defend economic needs and basic rights.[xvii] In this regard, Chaudhry represented their needs exactly at the top of the judicial branch. The people depended on him, and appreciated him when he defended them. Even Imran Khan, a current presidential candidate, pinned his hopes on the Chief Justice. In a 2012 issue of Time magazine, he wrote, “Iftikhar Chaudhry has become the first…to attempt to bring the powerful to justice…A nation long deprived of justice now anxiously awaits it.”[xviii]
While Chaudhry was the icon of the movement, there were multiple forces—the media, the Bar, short-term political tactics—that transformed his one act of defiance into a larger movement for rule of law in Pakistan. The protests started in the north-central Punjab region, and turned into a movement with a national complexion. Among other factors, the independent media’s broadcasting of the protesters’ messages throughout Pakistan, along with its criticism of Musharraf’s rule, allowed the Lawyers’ Movement to spread. Ironically, the growth of the independent media from 2000-2008 was led by none other than Musharraf himself.
In 2000, Pakistan had one national channel; today, it has hundreds. This massive growth spurt can be traced back to the Kargil/Kashmir dispute with India in 1999-2000. In the middle of the crisis, the Pakistani military covertly crossed the Line of Control—a boundary that divides the region into Pakistan-administered and India-administered regions—causing India to counterattack the Pakistani infiltration with bombings. Talks were under way between the two countries, but Musharraf, then an army chief, was not looking to back down. The problem for him was public opinion: it had begun to wane in support of military action toward India. A chief cause of the decrease in public opinion, according to Ariq Zafar, CEO of Communications Research Strategies in Islamabad, was that Pakistan only had one national channel, which prompted many Pakistanis to turn to Indian newscasters to get their news.[xix] As a result, Pakistan was bombarded by Indian propaganda and the Pakistani government was unable to effectively communicate its message to the people. The Kashmir incident impelled Musharraf, when he assumed the presidency, to revamp Pakistani’s media industry by encouraging the opening of independent agencies and removing restrictions and regulations.
It did not help Musharraf that Chaudhry was a particularly media savvy Chief Justice. Chaudhry recognized that as he increased his suo moto powers, he would make more and more political enemies; as such, his survival would depend almost solely on popular support. He became image-conscious of the Supreme Court, even dedicating a section of the Supreme Court Report of the 2006 to media relations. “Supreme Court and the Media” was the title of the section, which included eighteen press reports on what Chaudhry had accomplished over the course of the year.[xx] These press reports were intended to remind reporters what they had covered, while also giving them a long-term view of the progress of the judiciary. In addition, Chaudhry established connections with journalists and pressed them to write editorials that hailed him. Through all of these efforts, a national narrative developed: this court was the people’s court, and their expansion in power was not dictatorial but rather an effort to defend the people from other corrupt institutions.
As such, the television images that reverberated through TV screens—of Chaudhry resisting Musharraf to his face, and of police officers shoving Chaudhry into a police car—angered citizens. These were vivid pictures of courage and abuse, respectively, and they became a rallying point for the movement. The lawyers were especially moved by these images; they felt that shoving Chaudhry into a police car was an affront to the dignity of the legal profession, in which they worked.
While the legal community was enraged by these images, Chaudhry had consolidated lawyers’ support far before the march even began. The Pakistani Bar Council (PBC) and Supreme Court Bar Association (SCBA) had traditionally been very divided organizations, split along partisan lines. However, Chaudhry had managed to garner the support of both of their leaderships, an important move for both image and mobilization efforts. To establish such support, Chaudhry had to actively shape the election of the president of the SCBA—which he did with the election of Munir Malik, an anti-Musharraf candidate.
The election for SCBA chief was held in October 2006, and there were two candidates in the running: Malik, an anti-regime contender, and Raja Haq Nawaz Khan, who supported Musharraf. After a close election in which Malik won, there was a forced recount and an appeal to the Lahore High Court, which ruled that Malik could not hold the position until the voting disputes were resolved. Malik, in turn, appealed to the Supreme Court. Chaudhry saw this as an opportunity: he could ensure that the SCBA would support him—thus gaining a huge ally in the Bar—with the drawback being that he would be directly declaring war against Musharraf. He chose to take the risk and overturned the Lahore High Court’s decision, which ensured that Malik would be elected to the helm of the SCBA.[xxi]
The consolidation of support was significant for two reasons. First, Chaudhry was able to project the image that his actions had broad support. When he refused to step down, both the PBC and SCBA were immediately on his side, alleging that Musharraf had no constitutional right to suspend the chief justice. Second, the SCBA and PBC gained the respect and attention of practicing lawyers around Pakistan—so when they organized the marches, the lawyers followed. The bar councils played a crucial operational role in turning anti-regime sentiment into action. These organizations had contact information for almost all the lawyers in Pakistan, and they were able to effectively network and get them into specific places at specific times. Considering that Musharraf had virtually demolished political parties’ ability to unite, the bar’s organization was one of very few institutions that Chaudhry could rely on to coordinate such a movement.
In addition to the media and the Bar’s role in pressuring Musharraf, the game-time political decisions by Chaudhry managed to galvanize the demonstrators. As soon as he was released from prison, Chaudhry assumed the role of chief campaigner, and traveled to rallies with the former Minister of Law, Justice and Interior Aitzaz Ahsan. Unlike most chief justices, he did not see campaigning as below the dignity of his job or below the prestige of the court. The people loved him, and he knew that the easiest way for the movement to gain momentum was for them to see him in person, in flesh and blood. A key benefit of campaigning was that local leaders and bar officials—the very people who organized the local protests—could get the credit and recognition they deserved. They were also able to share the stage with him and “bask in [Chaudhry’s] glory,” Sarwar Bari recalls.[xxii] Ahsan’s and Chaudhry’s speeches would often express extensive gratitude to the local officials for their help. These personal connections, forged by Chaudhry’s knack for politicking and networking, motivated local officials to do even more for the movement. All of these protests put enough pressure on Musharraf that he eventually had no choice but to resign.
A Populist, Political Court?
Much of current political science literature argues that Chaudhry is a force for good in Pakistan, a countervailing force to dictators who have stained Pakistan’s history for too long. “Pakistan’s Reluctant Hero,” Time magazine’s cover dubbed him in mid-2007. [xxiii] While Chaudhry managed to restore the rule of law to Pakistan’s highest office in 2008, he seemed to shed his “reluctance” by 2013. In 2012 alone, the Supreme Court had intervened and ruled for the removal of two prime ministers serving under President Asif Ali Zardari. Had the Supreme Court over-stepped its boundaries? Had it become too political?
The image of Chaudhry in front of thousands of citizens, rallying the crowd and promising to fight on their behalf does not fade easily. Since he began using his suo moto powers to intervene in economic and human rights issues, he had been named the “man of the people.” This name was fitting for two reasons: first, he was a people’s advocate for the policies that he supported and the rights that he defended. These range from cracking down on illegal detentions to pushing for more economic relief. Second, unlike his predecessors, he came from the people. His power did not come from appointment by the Commission; it derived from the populace, who pushed him back into power through the demonstrations. In this way, Chaudhry was more like a politician than a judge—he owed his position to the people and, therefore, felt it necessary to keep cultivating their allegiance to him.
The judiciary in Pakistan, as in other democracies, was originally created to maintain a check against the political interests of the executive and legislative branches. These branches depend on public support for their policies and election, and since public opinion is always changing, politicians are assumed to be relatively shortsighted. The Supreme Court’s role—reflected in the appointment-based nature of the job—is to maintain a check against these political decisions. Since they will not need to run for election, judges are blessed with the ability to overlook short-term political gains and focus on longer-term effects of policies on the law, the rationale went. As such, the Supreme Court would not make policy but simply deliberate on it.
Chaudhry does not fit this description of an ideal judge. Since Chaudhry’s rise was driven primarily by popular support, there was a strong likelihood that the Court was going to act more politically than a traditional court would. Chaudhry viewed himself as a man of the people, not a man of the law. While taking on Musharraf’s regime, he also inevitably created political enemies and struck political deals that needed to be redeemed during his tenure. A prime example of this is his firing of Prime Minister Yousuf Raza Gilani for not pursuing corruption charges against Zardari.
Chaudhry and Zardari never had the strongest relationship. But their relationship took a turn for the worse in March 2008, when Zardari opposed Chaudhry’s reinstatement as chief justice. Musharraf had agreed to stop pursuing several corruption cases against Zardari and his wife, Benazir Bhutto, which allowed both of them to stay out of jail. When Chaudhry was removed, Zardari agreed tentatively with Sharif’s PPP party to establish a deadline for Chaudhry’s reinstatement. However, Zardari got cold feet, afraid that Chaudhry might reverse Musharraf’s original decision to annul the corruption cases against him and his wife. He then chose to support Musharraf’s candidate, Abdul Hameed Dogar, to replace Chaudhry.[xxiv]
Chaudhry, naturally, was not pleased and he appeared to launch a campaign against Zardari when he was reinstated. In February 2010, Chaudhry suspended Zardari’s judicial appointment for the Supreme Court[xxv]; in March 2010, he arrested Zardari’s top anticorruption official for failing to reopen corruption cases against Zardari[xxvi]; in June 2012, he issued an arrest warrant for Zardari’s close political ally, who was rumored to be a likely contender for the next presidency; and finally he ousted Zardari’s prime minister, Gilani, for his failure to press the Swiss to open an investigation on whether Zardari had laundered $12 million.[xxvii]/[xxviii] Although Chaudhry had reason to pursue charges against Zardari—the current evidence suggests that he indeed is guilty of corruption—the extent to which Chaudhry interfered with the stability of the government makes his actions seem like personal vendettas rather than actions of deliberation and measured reasoning.
Zardari’s term came to an end in March, and presumably he will not return to politics. It remains to be seen whether Chaudhry will tone down his political rulings and judicial activism. For now, the identity crisis for Chaudhry—between judge and politician—still remains. After all, is it even possible to fairly review cases when one is considered a representative of the people?
An Elitist Movement?
Lawyers in suits and ties, sweating under the hot Pakistani sun, marching on the streets, enduring tear gas and resisting lines of policemen—that is the classic image of the Lawyers’ Movement. Unlike most organized demonstrations, such as the Arab Spring, the Pakistani movement did not begin from the ground up. Everyday citizens were not the first to mobilize and march on the streets. During the first few days of September 2007, when the movement was in its infancy, the people who participated in the protests were not the Pakistani equivalent of an Average Joe. They overwhelmingly came from one group: the legal community, an upper-middle class profession.
The media has labeled the Lawyers’ Movement as a successful example of a national uprising. While average citizens did indeed participate in some of the marches, especially in the climax of the movement, the rallies were organized and attended overwhelmingly by lawyers. According to Haris Gazdar, labeling the movement as “national” is not very accurate. “What was not in the picture [of the movement] was the rest of the country—southern Punjab, most of Pakhtunkhwa, and all of Balochistan and Sindh.”[xxix] The exclusion of these geographical regions, he argues, makes the Lawyers’ Movement an elitist uprising that was simply painted by the media as representative of the popular will.
If Gazdar is right, then Chaudhry should be unable to truly claim that he has popular backing by the people. His reinstatement as Chief Justice, then, was not the result of any consensus by the people, but a power grab by the members of the legal community. This movement ousted a dictator, Musharraf, but then illegally put in place their nominee as head of the judicial branch. If it was not a truly national uprising but a political ploy co-led by Chaudhry’s allies and Sharif’s PML-N party, then where was the rest of the nation during the movement? According to the 2009 poll previously mentioned, chances are that they did not care about the outcome of the protests.
The idea that Chaudhry is the “man of the people”—especially when he may very well not be—may have dangerous consequences. By removing two prime ministers, Chaudhry’s foray into judicial activism has begun to bleed into the category of judicial coups. His judicial expansion, from his suo moto interventions to the removal of Zardari administration officials, implied that he had support from the people to extend the court’s mandate. During Gilani’s firing, for example, Chaudhry ignored the existing rules as mandated by the constitution and created his own.[xxx] While reading his order, he seemed to imply that his authority to circumvent the law could be justified because the people demanded it. After all, who would dare stand up against a person around whom the entire nation allegedly rallied?
The elitism of the movement also raises a practical concern. If the lawyers, not the people, indeed mobilized the movement, how could the people truly “check” Chaudhry if he went awry? Since the legal community backed Chaudhry in the first place, it would probably not be the first to oppose any of his actions. The burden of keeping Chaudhry in check falls to the public. However, the public currently does not have the tools in order to unite and organize a full demonstration. The logistical problems associated with mass-mobilization will make difficult any future effort to curb judicial activism.
Potential Constraints on Chaudhry’s Power
If Chaudhry continues to expand his authority, Pakistan may be headed toward a dictatorship of the judicial branch. The potential spoilers to his power are the influential institutions in the country—namely, the Bar, the people, and the independent media. Out of these institutions, the independent media is the most likely to be vigilant in checking Chaudhry’s power.
While the Bar possesses one of the most powerful organizational capabilities, it is unlikely to be the first to defect from Chaudhry. Historically, the executive branch has oppressed both the judiciary and the Bar. Thus, during the past few years, the Bar has attempted to increase its stature to make up for its loss of power during the Musharraf years. In addition, the leadership of both the SCBA and PBC seem to be supportive of Chaudhry’s actions. For the past few years, these leaders have supported his decisions, including the firing of Gilani, and there is no indication that they will stop doing so. The current SCBA president, Asma Jahangir, participated in the Lawyer’s Movement against Musharraf and is a supporter of strong judicial independence, after having been put under house arrest by Musharraf.[xxxi] While Janhangir may have her limits with judicial activism, she has not shown any reservation concerning Chaudhry’s recent moves. Therefore, we should consider Chaudhry and the legal community as acting like one unit, in concert, without any plans of breaking apart from one another.
The people, on the other hand, have the opposite problem: while the desire to stop Chaudhry may be there, the organizational tools are not. As mentioned in the previous section, the Lawyers’ Movement was not a grassroots movement of any kind; lawyers spearheaded it. The lack of any existing infrastructure to connect disparate voices makes it much more difficult to encourage changes and coordinate rallies throughout the country. In addition, the populace also does not have any leaders who can take on the role of a principal organizer or rallying icon of the movement. For the 2008-2009 Lawyers’ Movement, Chaudhry was the icon; for a future movement, there is currently no one who seems able to replace him. For these reasons, the people may not be the most promising group to begin an opposition movement against Chaudhry.
The media, on the other hand, has none of these problems. The high number of channels in the media allows for both diversity of opinion and effective communication. The diversity of opinion comes from the quantity of news channels, which now number over ninety based in Pakistan.[xxxii] The number of radio stations has also increased to 106, as of a report based in 2010. This thriving media industry, coupled with lax regulations on freedom of speech, ensures that many viewpoints will be presented to citizens. It also ensures that at least a few of the outlets will be critical of Chaudhry’s expansive judicial philosophy. In addition to the diversity of opinion, the media is also extremely effective in projecting messages to the entire nation. During the Lawyers’ Movement, Pakistan watched as television channels broadcasted Chaudhry’s act of courage against Musharraf in September 2007. This exposure helped push the movement forward by giving people an icon and image to rally around. Any potential movement against Chaudhry would require the same extensive coverage that the Lawyers’ Movement received. Therefore, the reach of media stations, and their ability to directly project images into citizens’ living rooms, makes it the most likely venue for opposition against Chaudhry to develop—given, of course, that the media is allowed to stay independent.
The Practicality of Justice
On March 24, 2013, Musharraf returned to Pakistan after years of self-imposed exile. It was the first time he had set foot in the country since the Lawyers’ Movement drove him out of office. “Where has the Pakistan I left five years ago gone,” he remarked upon his arrival. “I want to restore the Pakistan I left.”[xxxiii]
It seems, however, that the Pakistan he left may not want him restored. The crowd that he expected to greet him did not materialize; his return was only welcomed by a little over a thousand people—a tiny crowd according to Pakistani standards. The subsequent rally he had planned later in the day was also cancelled due to security concerns. On April 17, his promise to save Pakistan ended when the Court ordered his arrest; he fled the grounds of the High Court that day with his security guards, but was forced to surrender when the police raided his compound. Musharraf was arrested and brought to back to the court on April 18.[xxxiv]
Perhaps the clearest way to exhibit the remarkable political shift between 2007 and 2013 is to compare two iconic images side-by-side: in 2007, the clip of Chaudhry shoved into a police car after Musharraf’s order of his arrest, and in 2013, the images of Musharraf’s arrest and subsequent transport to the court. Chaudhry and Musharraf, in a way, had traded places. Chaudhry is now in a position of power as compared to Musharraf, who is currently at the mercy of the judiciary. This shift in power has put Chaudhry at the helm of the regime—especially since an interim government is currently in place for the elections—and given him extensive influence in determining the stability of the country.
The trade-off between stability and justice in Pakistan could not have higher stakes. As Chaudhry demonstrated with the expulsion of two of Zardari’s prime ministers, his relentless pursuit of justice against Zardari’s corruption caused Zardari’s administration to suffer immense political costs. With the upcoming election closely contested between several parties, there is currently a vacuum of power in Pakistan. When the new president is inaugurated, he will be required to launch an extensive campaign to revive legitimacy in the government whilst battling a jihadi militancy that seeks to impose chaos on the country. Chaudhry’s expansion of the judicial branch, namely his increased use of suo moto powers, threatens to add to the instability. Whether the inevitable instability is a fair price to pay for justice—something that Pakistan lacked during Musharraf’s years—is a question that Pakistan will have to decide in the coming months and years.
Placed in the context of history, the Lawyers’ Movement was an extremely unique force for change: it was led by an ardent desire to restore a rule of law to Pakistan and not by dreadful economic conditions like most popular revolutions. But the nature of the Movement also presented the country with unique challenges, the most concerning being the rapid rise of the judiciary. As detailed in this paper, there are very few institutions that are currently capable of stunting its growth. Judicial coups, by their nature, are much more vague and nebulous than physical military takeovers—no tanks are seen on the street, no guns fired, no bodies counted. While these coups are nonviolent, their damage cannot be assumed to be less severe. In fact, these soft coups can be much more dangerous than military takeovers—for they are harder to directly confront, more institutionalized, and based on a perceived interpretation of law, not of force.
[i] Daud Munir, “Struggling for the Rule of Law: The Pakistani Lawyers’ Movement,” Middle East Report 251 (2009): 38.
[ii] Carlotta Gall, “Lawyers Battle Police Over Election Ruling in Pakistan,” The New York Times, September 30, 2007.
[iii] Declan Walsh, “Pakistan Supreme Court Dismisses Prime Minister,” The New York Times, June 19, 2012.
[iv] Nasira Iqbal, “A View from Pakistan,” Human Rights 36 (Winter 2009): 21.
[v] Constitution of Pakistan, Part VII: The Judicature, <http://www.pakistani.org/pakistan/constitution/part7.ch1.html>.
[vi] Iqbal, “A View from Pakistan,” 22.
[vii] K. M. A. Samdani, Role of the Judiciary in the Constitutional Crises of Pakistan & Other Essays (Lahore: Jahangir Books, 2007), 88.
[ix] Shoaib A. Ghias, “Miscarriage of Chief Justice: Judicial Power and the Legal Complex in Pakistan under Musharraf,” Law & Social Inquiry 35 (Fall 2010): 1000.
[x] Whit Mason, “Order v. Law in Pakistan,” World Policy Journal (2008): 61.
[xi] Samdani, Role of the Judiciary, 87.
[xii] Munir, “Struggling for the Rule of Law,” 39.
[xiii] Munir, “Struggling for the Rule of Law,” 40.
[xiv] Mason, “Order v. Law in Pakistan,” 63.
[xv] Ghias, “Miscarriage of Chief Justice,” 992-993.
[xvi] Ghias, “Miscarriage of Chief Justice,” 995-996.
[xvii] Laila Bokhari, “Addressing Fundamental Challenges” in The Future of Pakistan, ed. Stephen Cohen (Washington, D.C.: Brookings Institution Press, 2011), 93.
[xviii] Imran Khan, “An Enforcer in a Troubled Nation,” April 4, 2012 in Time 179 (17)
[xix] Mason, “Order v. Law in Pakistan,” 64.
[xx] Ghias, “Miscarriage of Chief Justice,” 998.
[xxi] Ghias, “Miscarriage of Chief Justice,” 1004.
[xxii] Mason, “Order v. Law in Pakistan,” 64.
[xxiii] Aryn Baker, “Pakistan’s Reluctant Hero,” Time Magazine, June 14, 2007. <http://www.time.com/time/magazine/article/0,9171,1632743,00.html>.
[xxiv] Matthew J. Nelson, “Pakistan in 2008: Moving beyond Musharraf,” Asian Survey, 49 (1): 20.
[xxv] Sabrina Tavernise, “Top Judge Suspends President’s Judicial Appointment in Pakistan,” New York Times, February 13, 2010.
[xxvi] Jane Perlez, “Pakistan Arrests a Top Crime Official,” New York Times, March 30, 2010.
[xxvii] Declan Walsh, “Pakistan Court Orders Arrest of Presidential Ally in a Drug Inquiry,” New York Times, June 21, 2012.
[xxviii] Declan Walsh, “Political Instability Rises as Pakistani Court Ousts Premier,” New York Times, June 19, 2012.
[xxix] Haris Gazdar, “One Step Forward, Marching to the Brink,” Economic and Political Weekly 44 (15): 9.
[xxx] Jon Boone, “Pakistan’s Prime Minister Yousuf Raza Gilani Disqualified By Supreme Court,” The Guardian, June 19, 2012.
[xxxi] Asma Jahangir, “Musharraf has Lost His Marbles and is Targeting Progressives,” The Independent, November 5, 2007.
[xxxii] Riaz ul Hassan, “Media Boom: 90 Channels, 106 FM Stations in 10 Years,” Viewpoint (Online Issue No. 147)
[xxxiii] Jon Boone, “Musharraf Returns to Pakistan to Lukewarm Reception and Taliban Threats,” The Guardian, March 24, 2013.
[xxxiv] Declan Walsh, “Musharraf Arrested After Fleeing Court in Pakistan,” New York Times, April 18, 2013.