Supreme Court or supreme power?

On Saturday, Imran Khan, a Pakistani cricketer-turned-politician with a propensity for threatening massive protests, once again threatened to lead a "tsunami march" to the country’s capital if Pakistan’s PPP-led government ignores (for the second time) the Supreme Court’s orders concerning the reopening of corruption cases against President Asif Ali Zardari. This is just the latest development in a growing confrontation between the executive — led by the Pakistan People’s Party (PPP) — and the Supreme Court.

In recent months, Pakistan’s judiciary and executive have been engaged in a power struggle that threatens to further destabilize a politically weak government already beset by problems ranging from economic decline to a major electricity crisis. The root of the current conflict lies in the Supreme Court’s insistence that Prime Minister Raja Ashraf write a letter to the courts in Switzerland, asking them to reopen previous corruption cases against President Asif Ali Zardari. In a bold move, the Supreme Court already dismissed previous Prime Minister Yousuf Raza Gilani on charges of contempt of court for refusing to write such a letter to the Swiss courts. It has now warned PM Ashraf that it will take "appropriate action in accordance with the law" in the event that he refuses to comply with the Court’s order.

In response, the current government has sought to protect PM Ashraf by passing the Contempt of Court Bill 2012, legislation that shields top government officials from charges of contempt of court. It is unlikely that the Court will allow this bill to stand – petitions challenging the Contempt of Court Bill have already been filed in the Supreme Court, which has now allowed PM Ashraf until the 25^th of July to make a decision. Ironically, this has put the Supreme Court – an institution that has immense popular support in Pakistan for its powerful stand in 2007-2008 against the military ruler General Pervez Musharraf – on a collision course with a civilian, democratically elected government.

As the lines are increasingly being drawn between the judiciary and the executive, supporters of each side have argued heatedly about the constitutionality of the court’s actions. Justice Markandey Katju, who once served on the Indian Supreme Court, believes the Pakistani Supreme Court has "flouted all canons of constitutional jurisprudence," since Article 248 of the Pakistani Constitution provides immunity to the President from criminal prosecution. Yet Article 248 only provides immunity to the President from criminal prosecution by domestic courts, and the Supreme Court is still free to ask a foreign court to pursue criminal proceedings against the President. As a result, it can be argued that the court’s actions have not violated the constitution.

More worrying than the debates over the legality of the current situation is the discourse that has emerged within Pakistan about the meaning of democracy and the role of different institutions in a democratic system. The executive claims that by sending one prime minister home and threatening to remove another, the judiciary is endangering the country’s fragile democratic system in a personal vendetta against the President. On the other hand, the Supreme Court has increasingly portrayed itself as the real representative of the people, an alternative to the elected parliament. Most dramatically, Chief Justice Iftikhar Chaudhry recently argued that the notion of parliamentary supremacy is "out of place in the modern era," stating that the constitution has predominance over the parliament.

The written judgment of Justice Jawwad S. Khawaja in the case concerning the dismissal of former Prime Minister Gilani further illustrates this deeply problematic way of thinking about the role of the judiciary in a democratic system. Justice Khawaja states that "it is the Constitution which is supreme over all organs of the State because it manifests the will of the people." Since, by this logic, the Constitution represents the will of the people, it is the Supreme Court – as guardian of the Constitution – that truly represents this will. Justice Khawaja clearly defines where power really lies in his understanding of a democratic system: "The Court can effectively perform the role of the people’s sentinel and guardian of their rights by enforcing their will; even against members of Parliament who may have been elected by the people but who have become disobedient to the Constitution and thus strayed from their will."

Through such words the very meaning of democracy has been redefined by the Supreme Court with a brilliant sleight of hand. No longer is democracy about people choosing their representatives through free and fair elections, with the opportunity to hold these elected leaders accountable through the ballot box. As far as the Supreme Court is concerned, democracy is about representing the will of the people as reflected in the Constitution and, of course, as interpreted by the Supreme Court itself. This is particularly problematic given the ease with which military rulers throughout Pakistan’s history have manipulated the constitution, tainting the very notion of constitutionalism in Pakistan.

In fact, this kind of discourse is eerily similar to the Pakistani military’s past claims of being the only institution that can protect the country and further the interests of the people. Historically, the military has frequently justified its interference in the political sphere by arguing that incompetent, corrupt politicians cannot run the country. Replace the "military" with the "Supreme Court" and this last sentence just as easily describes the current crisis in Pakistan. The executive is not exempt from this either – it, too, claims to be the sole power that can protect the interests of the people. While liberally throwing around words like "democracy," these claims overlook the fact that a fundamental aspect of a well-entrenched democracy is a balance of power between different institutions: the executive, the judiciary and the parliament. None of these institutions can claim sole power over other institutions without seriously jeopardizing the democratic process.

If the Supreme Court’s commitment to democracy is more than just rhetoric, it needs to recognize the parliament as the elected representative of the people, however corrupt and incompetent it may perceive these elected officials to be. It also needs to recognize that the democratic system does have some in-built mechanisms of accountability, one of which is the ballot box. This is not to say that the Supreme Court should not prosecute and hold accountable those who have been accused of engaging in criminal activities, but that the Court should also take into account other factors – such as public interest, political stability, and political feasibility – in its decisions, as is the norm in courts across the world. While the Supreme Court may not be acting unconstitutionally, it is certainly undermining Pakistan’s democracy, and seems to have no intention of backing down.

For the first time in Pakistan’s history, a democratically elected civilian government might be able to finish its full term next year. In a country that has struggled with a history of military coups and active military involvement in politics, this will be an unprecedented achievement. It would be extremely unfortunate – after the struggles against the military undertaken by both the judiciary and the politicians – were the Supreme Court now to stand in the way of the very process of democratization that it set in motion.

Fatima Mustafa is a PhD candidate at Boston University researching issues of state-building in the developing world.