Thursday, August 21, 2008
Shoaib A. Ghias, University of California, Berkeley, School of Law, has published "Miscarriage of Chief Justice: Lawyers, Media, and the Struggle for Judicial Power in Pakistan, 2005-07." Here is the abstract.
Pakistan is going through a historic constitutional moment and democratic transition. On March 9, 2007, Chief Justice Iftikhar M. Chaudhry was suspended and later manhandled. These events sparked an unprecedented mobilization of lawyers and judges to restore the chief justice. The media coverage of protesting lawyers dressed in black coats, drenched in blood, made headlines not only in Pakistan, but also around the world. On July 20, Chaudhry was reinstated, but not for long. When Musharraf held a presidential election on Oct. 6, the Supreme Court blocked the official result to review his eligibility to run for office while in army service. Before the Court could announce the decision, on Nov. 3, General Musharraf suspended the Constitution, dissolved the Supreme Court, and declared martial law ("emergency rule"). Musharraf cracked down on lawyers and judges, and consolidated his power. After the Feb. 18, 2008 elections, Yousaf Gilani of Bhutto's PPP has taken office as prime minister under Musharraf as president. But the question of restoring the bench remains unresolved.
This paper looks at the rise and fall of the Chaudhry Court (2005-07) from the theoretical perspective of public law, focusing on two questions. First, how did the Court expand judicial power leading to a confrontation with the Musharraf regime? I conclude that the Chaudhry Court intervened in governance (public interest litigation) at a moment when economic liberalization exacerbated corruption. Ecouraged by media and executive compliance, the judicial intervention extended to political questions, and finally produced backlash from the regime. Second, how was the bar and the bench (the legal complex) mobilized in the struggle for judicial power? I find the pre-crisis relationship between the bar and the bench crucial to explaining the extraordinary mobilization of lawyers to restore Chaudhry. The bench not only protected the autonomy of the bar before the crisis, but also played a role in bar elections to ensure a pro-bench/anti-regime bar leadership. The consolidated bar leadership as well as the inability or unwllingness of political parties explains the unprecedented lawyers movement. Finally, the paper explains how the judicialization of politics after Chaudhry's restoration (i.e. Sharif's return, Bhutto's "deal," and Musharraf's reelection) led to the imposition of martial law on Nov. 3. The paper ends with a summary of post-election developments.
Download the paper here.