Institutions and Individuals: Battle for Supremacy in Pakistan

Much is written about the struggle for supremacy between Pakistan’s civilian and military institutions. But Pakistani democracy is currently suffering from another power struggle – one between civilian institutions. During the past few years Pakistan has seen the rise of the Supreme Court as a new contender in the struggle for domestic power. Increasingly, however, conflicts between the judiciary and other branches appear to be battles between individuals rather than institutions.

After the controversial retroactive disqualification of former Prime Minister Yusuf Raza Gilani by the Supreme Court, Pakistan’s parliament this week passed a bill to amend the Constitution to grant immunity from contempt of court charges to certain government officials in anticipation of the court’s using the threat of contempt as a means of forcing the executive branch to enforce its orders. Supporting this concern is the court’s order to the new Prime Minister to respond by July 12th to their order that a letter be written to Swiss authorities reopening corruption cases against President Asif Zardari. The executive  branch continues to insist that they are constitutionally prohibited from following the court’s order as the president enjoys immunity during his term in office, and legal analysts describe the Prime Minister as being caught in a “contempt trap.”

Opposition politicians are predictably against the bill. Ahsan Iqbal of the Pakistan Muslim League – Nawaz (PML-N) said in a press release that the bill is part of a political strategy to protect the president from corruption charges, despite the PML-N’s having passed a similar bill when it was in power in 1997 and PML-N President and then Prime Minister Nawaz Sharif was facing similar battles with the Chief Justice at the time, Sajjad Ali Shah. Syed Munawar Hasan and Imran Khan, leaders of the Jamaat-e-Islami and Pakistan Tehreek-e-Insaaf political parties, called the amendment un-Islamic.

The lack of trust between parliament and the judiciary is mutual, though. While Pakistani parliamentarians were discussing how to reign in judicial oversight, Pakistan’s Supreme Court announced that judges were beyond the oversight of parliament. Neither is the first time that the Supreme Court has bristled at the prospect of parliamentary checks on its members. When parliament passed the 18th Amendment devolving powers that had been consolidated under past military dictators, the Supreme Court objected to a provision of the bill that created a new inter-institutional commission to nominate justices. Previously, new justices were selected by the Chief Justice himself. In a bizarre move, the Supreme Court began hearings on whether the unanimously passed constitutional amendment was unconstitutional for violating the “basic structure” of the constitution – an ambiguous set of unwritten principles that would essentially give the Supreme Court veto power over any act of parliament. Ultimately, the Supreme Court punted on the question, asking parliament to clarify certain aspects of the judicial commission and leaving the “basic structure” issue hanging over parliament.

As parliament prepared to take up the constitutional amendment limiting the court’s power to remove officials with contempt convictions, Chief Justice Iftikhar Chaudhry may have hinted at the return of the “basic structure” doctrine. Speaking at a ceremony for newly enrolled Supreme Court advocates last weekend, the Chief Justice referred to a “misconception in the minds of people regarding supremacy of parliament,” adding that the Supreme Court is empowered “to strike down any legislation which encroached upon the basic rights of the citizens.”

The framers of the US Constitution anticipated that the personal ambition of officeholders would lead to attempts to encroach on the powers of other institutions. This led to the implementation of a complex system of “checks and balances” to ensure that no one institution could assert itself as supreme to any other.

To maintain stability, governments must follow rules and procedures written for institutions, not individuals. Asif Zardari will not be president forever, nor is Iftikhar Chaudhry Chief Justice for life. As Pakistan navigates current controversies, officials from all branches of government should look for solutions that will hold up no matter who is President, Prime Minister, or Chief Justice.

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