Pakistan's Constitutional Mess

JURIST Contributing Editor Ali Khan of Washburn University School of Law says that despite recent remarkable rulings the Supreme Court of Pakistan should avoid venturing further into the treacherous waters of judicial activism and should not disturb the new political deal between President Pervez Musharraf and Benazir Bhutto under which the military leader pardoned the alleged crimes of the former prime minister ahead of her expected return to the country...



The Pakistan Supreme Court has successfully created a constitutional mess that may do more harm than good. Its judicial activism and bravery in defying President Pervez Musharraf's efforts to humiliate the judiciary and in reinstating suspended Chief Justice Iftikhar Mohammed Chaudhry was appreciated in legal circles throughout the world. Its exercise of suo moto jurisdiction to protect fundamental constitutional rights has also been a beacon of light for lawyers in Pakistan and other Muslim countries where state officials commit gross violations of rights with little accountability. Despite these admirable successes, the Supreme Court has begun to venture into political minefields, raising serious questions about the long term sustainability of its judicial activism.

Rights versus Politics

The Supreme Court's judicial activism is overdone when it actually interferes with politics. Of course, rights cannot be separated from politics. And violations of rights which the Court must monitor are related to political forces that determine governmental policies. Yet a responsible judiciary must constantly distinguish between the calculus of rights and the dynamics of politics. The Supreme Court rests on firm ground when it intervenes in public matters to preserve constitutional rights. It treads shaky ground, however, when the Court wishes to engineer political forces for the good of the country or for the greater protection of constitutional order. Engineering political forces through active judicial intervention is, and ought to be, beyond the scope of judicial authority.

Take the October 6 Presidential election. The Supreme Court may exercise its authority to hold whether a candidate holding two public offices, one civilian and the other military, may contest a Presidential election. This is not judicial activism. The Court may also rule whether the Presidential election for a five-year term ought to be held before or after general elections of the Electoral College. This is not mere politics. However, the Court's decision to split the baby between competing political forces has been most prejudicial to the nation's stability. The Court prohibits the Election Commission from announcing the result of an otherwise validly-held Presidential election. This sort of judicial engineering that throws the future into uncertainty is anything but the protection of rights. It invites forces of disobedience.

According to Pakistani folk wisdom - sometimes superior to untested constitutional interpretations - the best time to stop the cat from drinking the milk is before he drinks the milk. No strategy is effective in squeezing the milk out of the cat's belly. This folk wisdom dictates that it will be highly adventurous for the Supreme Court to now declare that General Musharraf could not lawfully contest the Presidential election. Any such ruling would be harmful to the protection of rights. The time to shoo away the cat has passed.

Politics versus Politics

The Supreme Court's judicial activism is even more objectionable when it begins to sort out political competition. When it comes to politics versus politics, a responsible judiciary stays out. In the United States, the doctrine of "political questions" provides useful, though imperfect, guidance for the judiciary. The political question doctrine clears the path for political forces to contest with each other, win, and lose. Judges may have a preferred dog in the fight. The political question doctrine, however, mandates that judges leave dog fights to dogs. Any judicial intervention to tilt the political field for or against a political party is uncalled for. The judiciary loses respect, not gains it, when it imposes its preferences on the political process or when it appears to be supporting or opposing certain political operators.

Applying these insights, it would be inappropriate for the Supreme Court to rule on the constitutionality of the Executive Ordinance under which the Musharraf government has lately pardoned the alleged crimes of Benazir Bhutto. The Ordinance is most certainly a seamy political transaction between two political operators, Musharraf and Bhutto, who seek power and will do anything to keep it. The deal is even more repulsive after Nawaz Sharif's deportation contrary to Supreme Court order. Despite these obvious problems with the Ordinance, the Supreme Court must not disturb the Musharraf-Bhutto political deal. By declaring the Ordinance offensive to the Constitution, the Supreme Court will further confuse the political scene, inviting chaos and perhaps military intervention.

Let the general elections in January 2008 sort out the politics.


Ali Khan grew up in Pakistan and is a law graduate of Punjab University, Lahore. He is currently a professor at Washburn University School of Law in Kansas. His publications are available here.


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