The
by-product of the judiciary's increasing power will be plenty more cases such as
the Facebook ruling, where the court system tests its limits and tries to eke
out further control. But troublingly, the amendment removes from the
constitution a clause that mandated regular intraparty elections, and it does
nothing to address the power of party heads to remove rogue legislators. This
means that Sharif -- who remains head of the PML but has been barred from
holding elected office because of criminal charges against him (until the 18th
Amendment changed this rule in order to get the PML vote) -- could dismiss
parliamentarians of his party who do not vote as he directs on a range of
issues. Although Zardari has been divested of much of his official power, he and
his 22-year-old son, Bilawal Bhutto, remain co-chairmen of the PPP. It is
unlikely that Gillani, now technically the most powerful PPP member in
parliament, will take up legislative matters that Zardari doesn't approve. Nor
will the PML cross Sharif. Without internal democracy, the major parties will
remain conduits for personal power and new ideas will be crowded out. Progress
on Pakistan's most pressing problems will remain stalled, as Zardari and Sharif
continue to clash. Unfortunately, this sets the government up for a collapse and
military similar to those of 1977 and 1999. -- Kathryn
Allawala
What the Facebook Ban Says About Pakistan's
Judiciary
By Kathryn Allawala
On May 19, news spread that
Pakistan was blocking many open-content Web sites -- including Facebook,
YouTube, Wikipedia, and Flickr -- after users complained about a Facebook page
that was holding a competition encouraging users to draw caricatures of
Muhammad. Before the ban, supporters used Facebook status updates to declare
their intent to boycott the site. Many of those who were opposed updated their
pages with messages that they would not be visiting the Web site until their
government changed its mind. On the streets, the mood was darker. On one side,
activists marched in favor of the move and called for even wider restrictions.
On the other, another group demonstrated for the ban's immediate reversal.
In one sense, these events can
be read as a sign of Pakistan's growing Islamization and the government's fear
of social unrest. Acting at the behest of a group of lawyers called the Islamic
Lawyers Movement, the Lahore High Court, the highest court of Pakistan's most
populous region, argued that the courts had a responsibility to act against such
a blasphemous offense. The government, which had favored blocking only the
Facebook page in question, was apparently driven less by religious concern than
by the desire to avoid a replay of the violent riots that shook the country
following the 2005 Danish cartoon controversy.
Beyond the issues of religion
and freedom of speech, however, lies a deeper story -- that of Pakistan's
changing power structure and the shifting roles of the country's three
institutional pillars: the government, the judiciary, and the military. Rather
than simply a sign of creeping Islamism, the Facebook ban is an outgrowth of the
power struggle that has consumed the judiciary and the government since 2007,
when Pervez Musharraf's military dictatorship crumbled. Should these struggles
persist, the third pillar might very well make a comeback.
Previous battles among
Pakistan's three institutional pillars are evident in the nation's much-amended
constitution, and the revisions to this document set the scene for the recent
Lahore High Court ruling. As Humayun Akhtar Khan, secretary-general of the
Pakistan Muslim League, recently wrote in Dawn, Pakistan's leading
English-language newspaper, "Since Pakistan came into existence there has been a
tussle between the politicians and the generals. When they assume power, the
generals seek legitimacy and the politicians more power. Together, they shred
the constitution to pieces." For the past 40 years, while the civilian
government and the military have sabotaged the constitution, the country, and
each other, the judiciary has stood quite helpless between them. But now its
power is growing.
The institutional roles of
Pakistan's three pillars solidified during the tenure of Pakistan's first
popularly elected Prime Minister, Zulfikar Ali Bhutto, who came to power in
1971. During his seven-year rule, he used his constitutionally unrestrained
power to ban opposition parties and centralize control over the provinces. In
the meantime, he amended the country's constitution to set a fixed term for
judges and gave himself the authority to transfer them between courts. The
upshot was obvious: he could pack the high courts with whatever allies he
wanted.
When his Pakistan People's Party
(PPP) claimed 75 percent of the vote in the 1977 general election, it was a
bridge too far and violent riots swept across the country. It was then that
General Muhammad Zia ul-Haq, Pakistan's most notorious military dictator,
stepped in to restore order and abolished the overly powerful role of prime
minister. Shortly thereafter, he amended the constitution to shorten the tenure
of the chief justice of Pakistan, who was forced to retire immediately. By the
fall of 1977, a pliant Supreme Court had officially validated his coup, and he
became president. The court's action set a dangerous precedent: the civilian
government would amass power and become corrupt, the military would intervene,
and the courts would provide it with legal cover.
Over the next few years, Zia
further weakened the courts. He forced judges to take oaths of allegiance to him
and set up the Federal Shariat Court, an Islamic court independent from the
federal courts with judges beholden to him. By the mid-1980s, Zia turned his
attention from reforming Pakistan's judiciary to reforming its civilian
government. He reinstated the post of prime minister and pushed an amendment
through parliament that gave the president the ability to dismiss the prime
minister and the National Assembly. Not only did the move further legitimize his
dismissal of Bhutto it also put him at the center of Pakistan's political system
and ensured that no one in government could cross him -- and no one
did.
In fact, it wasn't until
popularly elected civilian politicians returned to power after Zia's death, in
1988, that the amendment was ever invoked. And in the decade that followed, no
democratically elected prime minister finished his or her term: Prime Minister
Benazir Bhutto was dismissed by the president twice, in 1990 and 1996; and in
between, Prime Minister Nawaz Sharif was dismissed once, in 1993. The presidents
cited incompetence, corruption, and nepotism in each case.
After Bhutto was ousted in 1996,
Sharif was again elected to office. He was determined to reform the constitution
and put an end to the government's clashes over power -- mostly by vesting all
of it in himself. In addition to revoking the amendment that gave the president
the power to dismiss him, he passed another to give party leaders (namely, him)
the power to dismiss any legislator who failed to vote with the party head. In
1997, when the Supreme Court attempted to invalidate some judicial appointments
Sharif had tried to make, he had party members storm the court and forcibly
banish the chief justice and the president.
Sharif's unchecked rule spurred
violent protests across the country, cueing Pakistan's military to intervene. In
1999, General Pervez Musharraf seized power. The coup was widely popular, and
the Supreme Court quickly and unanimously validated it. To restore functioning
governance, Musharraf, now president, amended the constitution to once again
empower the president to dismiss the prime minister. This completed Pakistan's
second tour through the cycle of civilian corruption and military intervention
followed by a judiciary rubber stamp on the process.
In 2007, however, something
surprising happened: a burgeoning civil society, a more professionalized class
of young lawyers, and widespread fatigue after eight years of Musharraf's
increasingly unpopular rule invigorated the judiciary. With elections looming,
Musharraf needed the Supreme Court to renew an earlier ruling that he could
remain head of the military and still run for president. The court refused to do
so, and Musharraf attempted to dismiss its chief justice, Iftikhar Muhammad
Chaudhry. In reaction, a peaceful movement of lawyers for the reinstatement
Chaudhry and the ouster of Musharraf swept the country. The political parties
were able to capitalize on the movement, and the PPP won the 2008 elections.
Shortly thereafter, Musharraf left the country.
For the first time in Pakistan's
history, it appeared that the government and judiciary would be empowered at the
expense of the military, putting an end to the country's political problems. A
more powerful judiciary, people hoped, would temper the worst of the civilian
politicians' inclinations to amass power. And in turn, the government would be
less vulnerable to military intervention because the military had historically
only stepped in when the politicians' corruption led to political breakdown and
popular unrest.
Now it appears that many battles
between the judiciary and government loom on the horizon. Early this year, the
government decided to amend Pakistan's constitution, proclaiming that it was
strengthening the country's democratic institutions. The new amendment, the
constitution's 18th, which passed the National Assembly in April, yet again
revokes the main presidential power -- the right to dissolve the National
Assembly and dismiss the prime minister. The PPP has argued that the amendment
replaces the imbalanced, quasi-presidential system (which they see as a legacy
of Pakistan's military dictators) with a more democratic, fully parliamentary,
and stronger one. Even though the bill renders President Asif Ali Zardari little
more than a figurehead, he nonetheless claimed at the signing ceremony: "I do
not find myself powerless because my power is democracy and people of the
country."
Certainly, the amendment
restores the balance of power to Pakistan's National Assembly and strips some
remaining vestiges of the military dictatorships from the constitution: it
nullifies Zia's and Musharraf's major constitutional amendments, and even
removes every mention of Zia's name. And safe from being sacked by the president
at whim, Prime Minister Yousaf Raza Gillani might be able to lead the National
Assembly to take up matters -- such as the country's economic problems and
ongoing energy crisis -- that Zardari had neglected or over which he had been
deadlocked with the main opposition party, the Pakistani Muslim League
(PML).
The by-product of the
judiciary's increasing power will be plenty more cases such as the Facebook
ruling, where the court system tests its limits and tries to eke out further
control. But troublingly, the amendment removes from the constitution a clause
that mandated regular intraparty elections, and it does nothing to address the
power of party heads to remove rogue legislators. This means that Sharif -- who
remains head of the PML but has been barred from holding elected office because
of criminal charges against him (until the 18th Amendment changed this rule in
order to get the PML vote) -- could dismiss parliamentarians of his party who do
not vote as he directs on a range of issues. Although Zardari has been divested
of much of his official power, he and his 22-year-old son, Bilawal Bhutto,
remain co-chairmen of the PPP. It is unlikely that Gillani, now technically the
most powerful PPP member in parliament, will take up legislative matters that
Zardari doesn't approve. Nor will the PML cross Sharif. Without internal
democracy, the major parties will remain conduits for personal power and new
ideas will be crowded out. Progress on Pakistan's most pressing problems will
remain stalled, as Zardari and Sharif continue to clash. Unfortunately, this
sets the government up for a collapse and military similar to those of 1977 and
1999.
The wild card this time is the
judiciary. Already the Supreme Court has decried the amendment as
unconstitutional, arguing that these measures undermine democracy as laid out in
Pakistan's 1973 constitution. It has also taken issue with the new commission to
appoint judges, which will include representatives from the National Assembly,
that the 18th Amendment mandates. At the same time, it has begun hearings on
whether Zardari is legally able to hold the posts of president and PPP party
head at once, and has started corruption cases against many leading
politicians.
The by-product of the
judiciary's increasing power will be plenty more cases such as these and the
Facebook ruling, where the court system tests its limits and tries to eke out
further control. Tellingly, the government did not speak out publicly against
the ban when it was enforced, even though it had been opposed to shutting down
pages and Web site other than the Facebook page with the "Draw Muhammad"
contest. Indeed, this ban was a well-selected bit of judicial activism; since
Islamic morality is such a divisive topic in Pakistan, the government would not
be able to condemn the Lahore High Court without inciting a potentially violent
response. Although the Supreme Court has now rolled back the ban, it has left
open the possibility for the courts to censor offensive material in the
future.
Given Pakistan's weak
constitution and poorly institutionalized government, there is no guarantee that
total judicial independence from elected politicians (even the terribly corrupt,
power-hungry ones) will be a good thing. For all the professional and moderate
lawyers and judges, there are plenty who are corrupt, are carrying out personal
vendettas, are in the pockets of those who appointed them, or are beholden to
religious groups such as the Islamic Lawyers Movement. If these kinds of rulings
monopolize the judiciary's agenda, distracting it from the more pressing task of
moderating a government that looks to be repeating the same mistakes as civilian
governments past, Pakistan's empowered second pillar may end up being yet
another problem. As always, the country's third pillar waits in the wings, ready
to step in if the situation should get out of hand.
KATHRYN ALLAWALA
works at Foreign Affairs.
http://www.foreignaffairs.com/articles/66429/kathryn-allawala/laying-down-the-law-in-pakistan
10:10 PM
Sultan Shahin
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