Justice Louise Arbour Concerned About Direction of Pakistan’s Supreme Court

Justice Louise ArbourJustice Louise Arbour has a distinguished career devoted to promoting the principles of justice. Currently serving as the President of the International Crisis Group, Justice Arbour is the former UN High Commissioner for Human Rights, a former justice of the Supreme Court of Canada and the Court of Appeal for Ontario and a former Chief Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda. As such, she knows a thing or two about the importance of an independent judiciary in developing countries and emerging democracies. That’s why, when Justice Arbour expresses concerns about the looming constitutional crisis in Pakistan, her concerns merit serious consideration.

An ardent supporter of Pakistan’s 2007 “Lawyer’s Movement” to restore judges deposed by Gen. Musharraf, Justice Arbour had hoped to see a new era for the Court, one that broke with its past of supporting military dictators and their mangling the Constitution and the rule of law. Today, she fears that those same justices have become “intoxicated with their own independence,” and that the current direction of Pakistan’s Supreme Court Justices threatens to upend the very democratic order that restored them to the bench.

Speaking to a crowded auditorium at the Woodrow Wilson Center in Washington, DC, Justice Arbour noted that the current tension between Pakistan’s Supreme Court and its elected officials might seem like a political soap opera were it not for Court’s history of collusion with the military to suppress democracy. Judges “who took an oath to a military dictator are not well placed to make the decision” to remove democratically elected officials, she observed, referring to Chief Justice Iftikhar Chaudhry’s 1999 oath under Gen. Musharraf’s Provisional Constitutional Order. While not inevitable, Justice Arbour said, it is possible that Pakistan’s Supreme Court could end up dissolving the democratically elected government with the help of the military, putting in place an extended caretaker government in what would be, for all intents and purposes, another coup.

During her visit to Pakistan, she assured the room, she met with no government officials. Her interest was in the views of the legal community, whom she found deeply divided, seemingly on political lines. This troubled the former Justice, who worries that Pakistan’s Supreme Court has become increasingly politicized, threatening its credibility. She pointed to the memo commission, which she said “reflected very poorly on the judiciary,” and added to the appearance of growing politicization.

The present case, in which the Supreme Court has ordered the Prime Minister to write a letter to Swiss authorities requesting that criminal cases be reinstated against the President, adds to the appearance of an increasingly politicized judiciary. From a legal perspective, the issue centers on one of separation of powers. In fact, Pakistan’s Chief Justice has repeatedly stated recently that “parliament is not supreme.” In questions such as these, where the Supreme Court has a vested interest in the outcome, Justice Arbour suggests that it is all the more important that court show self-restraint and frame its decisions in a way that “advances the authority of all institutions,” not only its own.

Justice Arbour was also clear that her concerns about the Supreme Court’s actions do not imply a disinterest in accountability. There is a misconception that presidential immunity is unprecedented, she explained, reminding the audience that former French President Nicolas Sarkozy enjoyed immunity from prosecution during his term in office and, now that he is out of office,  faces possible charges for campaign finance violations.

Article 248 of Pakistan’s Constitution, which grants temporary immunity to Pakistan’s President, Prime Minister, and Governors, is clearly worded, said Justice Arbour; and that privilege exists for a reason – to allow government officials to perform their official duties without distraction. Asked by a member of the audience whether President Zardari should be subject to accountability, Justice Arbour responded that all officials should be subject to accountability. The issue is not one of accountability, but timing. Rather than wait six months for Pakistan’s next general elections, she said, the Supreme Court is unnecessarily undermining not only the present government, but the democratic system, which is weak from decades of neglect under military regimes.

Justice Arbour is not the only former Supreme Court justice to express grave concern about the direction of Pakistan’s Supreme Court. Last month, Justice Markandey Katju, a former member of the Supreme Court of India, wrote a detailed explanation for his concern that Pakistan’s Supreme Court is “playing to the galleries and not exercising the self-restraint expected of superior courts.”

As a growing chorus of international jurists expresses concerns about the actions of Pakistan’s Supreme Court, we hope that Pakistan’s Honorable Justices will consider Justice Arbour’s words carefully if for no other reason than their own self interest. Historically, Pakistan’s courts suffered greatly under undemocratic regimes. Should Pakistan’s democracy become derailed as a result of the present crisis, there’s no reason to believe the judiciary would fare better this time around.

10 thoughts on “Justice Louise Arbour Concerned About Direction of Pakistan’s Supreme Court

  1. He whoever selflessly participated in the restoration of judiciary moment and believes fate of Pakistan is in Rule of Law and a buoyant democracy in Pakistan must appreciate the the golden words in this article, “court show self-restraint and frame its decisions in a way that “advances the authority of all institutions,” not only its own”.

  2. ‘Pakistan’s Supreme Court is “playing to the galleries and not exercising the self-restraint expected of superior courts.”’This line says it all ! Both, the Parliament & Supreme Court should avoid collision at all costs… as it is in the interest of democracy and Pakistan. Here I want to add that Parliament should also show some concern for the people who elected them rather than just safeguarding their ‘own interest’. By ignoring the masses for so long, they have just alienated themselves from its electorate !

  3. I was a devoted activist from 2007-09 Lawyers’ Movement despite I wasn’t lawyer that time! But now I believe the CJP has biases with PPP. He doesn’t condemn PMLN in any way…

  4. Justice Louise seems right in her analysis.The current situation has:

    i. caused all the focus on political cases crowding out general public litigation.

    ii. engaged the current government in litigation since the day one, not allowing it to focus on public problems.

    iii. polarised society between “pro-parliament” and “pro-judiciary”

    Pro-judiciary phenomenon is so intense in a group of lawyers that every second day they are boycotting (sic) courts to express their solidarity with the Courts (sic). Whose against they are? While such a strong court does not need any solidarity show, the effectees of such boycotts are litigants to whom the lawyers are supposed to work for! It is astonishing that while the Court have declared doctors’ strike against the Constitution, they never spoke against the strike by the lawyers. Rather they are patronised by salutory remarks by different judges like “independence of the judiciary owes its existence to the lawyers’ movement”. Double standards by a double oathed judiciary “once to support military dictator” and then to “uphold the constitution”.

  5. I agree that chief justice is not doing everything right. However, his stand against PPP Govt. is good. The reason is that the current Government of Pakistan is the most corrupt Government in the history of Pakistan. There are corruption scandals of this Government that are beyond our imaginations.
    The sad part is that the Opposition parties have joined hands with the current Government. President Zardari knows how to control Army Chief, Intelligence Agencies and the Political leaders. The only person challenging the government is Chief Justice of Pakistan in this Scenario. Hope he will comfort Pakistani Public by taking more positive steps. Long Live Pakistan.

  6. Advocate Salman Khan ! your comments are very confusing in one line you say “present regime is corrupt” and the next sentence is “Opposition is with the Government” and in your next line you are admitting that “President Zardari knows how to control Army Chief, intelligence Agencies and the political leaders “.Your comment it self proves that President Zardari is fully capable to handle the crises ridden country. This is what we expect from a Head of State. No doubt from his very high profile and intelligent moves in the National and international affairs has proved that at present he is the only wise and intellectual politician in the country which makes him superior from his contemporary politicians. As per the Sure Court is concerned in general and Chief Justice Iftekhar Mohammed Choudhry in particular is not only bio-st rather has become a party against Government which is against justice. their justice is just-ice and the international Community of law has come to know this Just-ice is killing the justice and very shortly it will melt…. and world will see their real face……

  7. I am a lawyer from Pakistan and i fully endorsed the wives of the Hon able Justice LOUISE ARBOUR even she wrote very humbly about the chief justice of Pakistan but in the real fact the chief justice of Pakistan is highly politically motivated person who wanted to to derail the democratic system and to become un elected President.he is highly crupt/dishonest/implementing his own version of the Pakistani constitution.he had made the supreme court as a political party and a union of judges who are not abiding law but the interest of there own and their families.

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