Supreme Courts and Democracy in Egypt, Pakistan and the United States

As the US Supreme Court rules on the universal health care plan, it is worth considering that all of a sudden the courts are playing an outsized role in the aftermath of the fall of the dictators in the Greater Middle East.

One of the concomitants of the outbreak of parliamentary democracy in the Greater Middle East has been a newly assertive role for the third branch of government. Justices from the Nile to the Indus have been intervening in politics and even challenging the military. It seems to me that a lot of punditry on the Arab upheavals has been superficial, attending to personalities or to stereotypes, and that the remarkable rise of the courts has been neglected.

Pakistan’s Supreme Court recently forced the prime minister from office. And a couple of days ago, Egypt’s Surpreme Court ruled that the military cannot arrest civilians. For the most part, this new judicial activism strikes me as salutary in the Middle East and South Asia. Contrast it with what the justices are doing in the US, where they are more often than not ornaments of the 1%, not oracles of the people.

It started in Pakistan, not in Turkey or Iraq. In March of 2007, military dictator Gen. Pervez Musharraf summarily dismissed Chief Justice Iftikhar Chaudhry. Chaudhry had been insisting on habeas corpus for individuals arrested as terrorism suspects, whom Musharraf had simply made disappear. The Chief Justice wanted them produced in court. There were some other disputes between the two, but likely it was Chaudhry’s challenge to the indefinite detention of suspects, without even allowing their families to know where they were or if they were alive, that provoked the crisis. (It is likely that Pakistan had turned some of the prisoners over to the US Central Intelligence Agency, which ran black torture sites, making it rather hard to retrieve them so as to produce them in court.)

It must have come as a shock to Musharraf that the legal establishment and the public in Pakistan did not take this affront lying down. There were massive rallies in Lahore and elsewhere, even though Pakistan was still under martial law, staged by the phalanx of barristers, clerks and other denizens of the court system, often supported by college students and other members of the public. Musharraf started to look as though he might not survive. He was pressed to become a civilian president. But the Pakistani constitution contained a provision that an active duty officer could not become president unless he had been out of service for two years. When Musharraf came to understand that the Supreme Court was going to declare him ineligible to be president even if he took of his uniform, the dictator dismissed the entire court and replaced it with justices who would do his bidding.

This further high-handedness only provoked more demonstrations and instability. By February of 2008, Musharraf was forced to allow relatively free and fair parliamentary elections, in which the Pakistan People’s Party and the Muslim League were the victors. By August of 2008, the new parliament was preparing to impeach Musharraf for corruption, and he had to step down. The Pakistan People’s Party managed to put together a government, and elected as president Asaf Ali Zardari, widower of PPP leader Benazir Bhutto– who had been assassinated in late December of the previous year. The legal establishment had played a role in ending the military dictatorship.

When Zardari himself dawdled about reinstating Chief Justice Iftikhar Chaudhry, his rival Nawaz Sharif of the Muslim League led a long march to the capital to protest. Ultimately the chief justice was reinstated. People in Pakistan really cared about who was on their Supreme Court, and stageds large rallies on the issue.

Zardari is very corrupt, and the Supreme Court wanted the prime minister to open an investigation into him. The PM, Yousuf Raza Gilani, declined to open an investigation. A couple of weeks ago, in an unprecedented move for Pakistan, the Supreme Court dismissed him from his office.

How resilient the parliamentary system is, is demonstrated by how quickly the crisis was dealt with. The president simply appointed a new prime minister, who gained overwhelming support in parliament.

Pakistani courts have helped keep politicians honest.

In Egypt, it was the Supreme Court who dissolved parliament because of campaign irregularities. But lest we conclude that they are just still just representatives of the old regime, the courts then went on to strike down the authority of the Egyptian military to arrest civilians.

From pushing the prime minister out of office (and hounding the president) in Pakistan to dismissing the entire elected parliament in Egypt, the courts in the Greater Middle East are tackling weighty issues and even intervening in governance. They are making the case for the rule of law, however, in places where the law was the fiat of the ruler. As former PM Gilani discovered, disregarding the justices can be a fatal mistake politically.

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6 Responses

  1. Absolutely loved the article. We pakistanis support our supreme court and chief justice more than anything else because we want everone to be equal before the law. Moreover, our politicians are very corrupt,

  2. It may be pointed out that main reason behind action of Musharraf against Justice Iftikhar on 09.03.2007 was judicial review of proivatization of Pakistan Steel Mill as with that judgement, the economic policy of the government was jeopardised. That judgment caused huge economic loss to Pakistan as it completely stopped privatization process, discouraged investment and such public sector white elephants became huge burden on government financial sources. With too much judicial activism, the goveernment machinery is terrified and paralysed and bureacracy devoid of decision making. This activism is proving dangerous for Pakistan and its economy.

    • “Privatization” of a large public asset — a nice marker of the kind of militokleptocracy that wracks so much of the former colonial world. There’s a lot of words written about the nerve of Iftikhar Muhammad Chaudhry in daring to challenge what Musharraf and the other kleppers at the center of the corruption and repression matrix were up to — “disappearing” citizens, blowing off demands for “habeas corpus,” and selling public assets to “investors” with some clear problems with kidkbacks. Here’s one sample: link to loc.gov

      Given the way “militobusiness interests” operate in places like Libya, Syria, Egypt, Israel, Pakistan and such, with the White Elephants of corruption and baksheesh and immunized naked power hung around the necks of the ordinary people who generate the real wealth that makes any of this possible, one might be a little skeptical about the remarks offered by Mr. Waheed.

      Seems to me that ordinary people, particularly in “Arab” places that our Rightsters try to scare us might be the source of the spread of what they peddle as the “disease” of “Sharia law” are yearning for a sense of the legitimacy of their ruling structures and classes. What a surprise that courts and lawyers might be acting to manufacture and validate the little bits of honesty and goodness that are the bricks in that edifice of legitimacy under a real rule of law. What a surprise, also, that John Roberts would apparently choose not to be labeled as the fella who put the stake through the heart of what is left of the mythical rule of law in America.

      • Chief Justice Chaudhry’s independent streak had become evident soon after his appointment in Islamabad. … “Under him, the Supreme Court took action on its own initiative to question the government on the role of the military and apparent instances of injustices.”

        Do you know if this inquiry was from a perspective of the Supreme Court that the military and Government were essentially the same body?

    • You sound like a 1950s southern businessman whining about the activism of the Warren Supreme Court on civil rights – because everybody “knew” that the South’s economy absolutely depended on white oligarchy to function and it would be doomed under integration.

      Sometimes more inequality is just for the purpose of more inequality.

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