THE LAWYERS' MOVEMENT AND JUDICIALISATION OF POLITICS

This section details the rise and fall of the lawyers’ movement in Pakistan (2007—2009). Stages in the movement provide an opportunity to chart the at times conjoint and at other times radically opposed fortunes of democracy and rule of law in this country.

A dramatic restoration for the Chief Justice was undertaken when the existing Supreme Court declared Musharraf’s acts illegal and deemed that Chaudhry had been the rightful Chief Justice throughout his suspension.^[361] Thereafter, the Supreme Court under Chaudhry was obstinate in pursuing cases of high political importance. For instance, the court threatened to nullify General Musharraf’s re-election to the office of President.^[362] This in turn precipitated the imposition of an ‘emergency’ designed to replace the recalcitrant benches of the Supreme Court and the High Courts with a compliant superior judi­ciary. Members of the superior judiciary were now invited to take a second oath under the PCO of 2007. Fifty-three out of ninety-five^[363]

The Lawyers' Movement and Judicialisation of Politics 139 judges refused. People once again braved an increasingly authoritarian state’s displeasure by taking to the streets in defence of this beleaguered judiciary.

In the sphere of public perception, the impact of lawyers acting in concert, without discernible self-interest in the outcome of their struggle and in defence of the judiciary, was of profound effect. Even as the protest movement broadened its ambitions in later days, a steadfast narration of lawyers as embodying the deeper principles of fairness and justice underlying an otherwise impersonal and, to most, incomprehensible body of laws was cultivated through their adherence to the demand for ‘judicial independence’ right from the outset. In many ways it was a conservative agenda powered by the notion that an efficiently functioning judiciary grafted onto a free market could meet equity concerns for Pakistan’s vast population of dispossessed. For oth­ers, Chaudhry had simply become a repository for hopes of justice that had nowhere else to rest.

The lawyers’ movement thus remained unified and was even able to draw in the support of the major political parties as long as it was staged in opposition to a military ruler. However, as Musharraf took to restoring some legitimacy for his own rule by going ahead with elec­tions scheduled for January 2008, leaders of major political parties and lawyers associations considered whether an overall boycott should take place. Soon after though, the movement would fissure on the grounds of whether the rule of law standard, for which the Chief Justice’s res­toration set a threshold of compliance, or the pro-democracy goal of partaking in the scheduled elections would have primacy.

The major political parties tied their fortunes to the outcome of the elections, even as some of the smaller ones abided by the boycott in protest against the continuing post-emergency suspension of the Chief Justice. In December 2007, whilst exiting a campaign rally, Benazir Bhutto was assassinated. The elections were delayed somewhat and when held in February 2008 returned a coalition government between the PPP and PML-N. Defying promises they made, including through signing the multi-party Charter of Democracy which promised to protect judicial independence and militate for the restoration of judges who had not signed the PCO, the PPP delayed the restoration of the pre-emergency judiciary.

The People’s Party government had much to lose with the resto­ration of a judiciary that had tied its fortunes to a strict rule of law

standard. Just prior to the declaration of emergency and Bhutto’s assassination, the National Reconciliation Ordinance (NRO) had been enacted. Through it, existing criminal and civil cases registered against a list comprising hundreds of persons, all of whom had been elected members of the National Assembly at some prior stage, were to be nullified. Amongst the chief beneficiaries of the NRO were Benazir Bhutto and her husband Asif Ali Zardari, who was elected President in 2008. Although delayed, Zardari did order the restoration of the Chief Justice in March 2009. Zardari’s political fate became subject to grave uncertainty when the Supreme Court nullified the NRO itself. Further­more, the Court directed that the national accountability bureau reopen cases against Zardari, which had been pending in Switzerland.

Prime Minister Yousaf Raza Gillani stalled and pleaded on behalf of Zardari the defence of presidential immunity, as established under international customary law. To this defence the court responded:

The Respondent’s stand amounts to saying that the order of ‘this Court is non-implementable’ and if accepted such an argument ‘would set a danger­ous precedent and anyone would then successfully flout the orders of the Courts by pleading that according to his interpretation they are not in accord with the law’.^[364]

The further convolutions that followed are detailed elsewhere in this volume.^[365] This was the beginning, however, of a growing antipathy towards Chaudhry for compromising democracy in the retention of a strict rule of law standard.

A case that further called into question the Chaudhry Court’s judg­ment, turned on the public leak of the contents of a proposal submitted to the US high command through diplomatic channels by the Zardari government.^[366] The memorandum itself promised a purging of military officers who were acting in collusion with Islamist militants, such as through the safe harbouring of Osama Bin Laden until 2010.

This case excited extreme furor in Pakistan amongst those who wished to see democracy flourish. Academic commentaries have also impugned the judges for not having understood, in their zeal, that judi­cial autonomy should not be about maintaining a ‘maximalist position’. Rather, that it needs to coexist in an ‘institutionalist matrix’ in which the broader goals of parliamentary democracy and constitutionalism need to be fostered. Memogate, as the whole incident came to be known, was used by detractors of the Chaudhry Court to suggest that the Court was continuing its historical role of complicity with the military and the executive against the interest of Parliament.^[368] In contrast, defenders of the Chaudhry court have argued that it was serving as ombudsman for the country, restoring faith in the system as a whole.

Even a seemingly egregious political judgment such as the Memogate case can be seen to have done pro-democracy work. The judicial com­mission established to investigate the authorship of the memo eventu­ally assigned culpability to one individual, whose resignation was sought by the political government.^[369] Speculation was rife that the leaked memo would have otherwise become the catalyst for a direct military takeover. The logic is perhaps sound. Given that military governments have rarely been resisted, at least at the beginning of their tenure, and that there is a culture in general of reviling politicians in the country, the court directed its moral legitimacy to providing a bulwark against military intervention for the duration of its term.

In these years the court’s jurisprudence certainly did intersect with a range of issues that have been termed the domain of ‘mega-politics’.^[370] In many ways the Court’s advance was such as to outpace the standard judicial review practices that have been held to be indicative of a judi- cialisation of politics in much of the world. This notion of judicialisa- tion implies that rather than being left to the domain of democratic decision-making, the review of far-reaching political questions such as involving ‘electoral processes and outcomes... regime legitimacy, executive prerogatives, collective identity, and nation building’ is under­taken by the judicial branch. There is no doubt that from July 2007 until the end of Chaudhry’s tenure this was the case in Pakistan. What is interesting to note, however, is that the court ardently resisted some vestiges of judicialisation that are indigenous to South Asia broadly.

VI.