Rule of Law is a Top Priority

With its resonant cry for “justice” and its angry one of “Go, Musharraf. Go,” the lawyers movement that emerged in response to Musharraf’s abrupt dismissal of Supreme Court Chief Justice Iftikhar Chaudhry in March 2007, and of some 60 other appeals judges in November, galvanized the country. It set a precedent in Pakistan by mobilizing public opinion across a startling range of partisan affiliations, and set the stage for the electoral rejection of Musharraf. The protests by members of the Pakistani bar also evoked broad sympathy among the American people. The bonds that developed in response between American bar associations and their Pakistani counterparts are a new chapter in peopleto- people relations between our two countries.

The restoration of the judges to their posts, which would ratify the principle of judicial review of actions by both the military and politicians, continues to be an important issue. The chief justice has popular appeal not only as a constitutional figure but as the personification of aspirations for the rule of law rather than of the gun. Mukhtar Mai, the now internationally known rape victim turned rights activist who has built a school and a women’s shelter in her south Punjab village, described Chaudhry’s return to the bench as “his right — he should be restored.” Her aide Naseem interjected, “Without justice there can be no development.”12

The post-election coalition of the Pakistan People’s Party, led by Asif Ali Zardari, and the Pakistan Muslim League, led by Nawaz Sharif, foundered in September over the issue of the chief justice’s restoration. Sharif wanted Chaudhry back on the bench; Zardari demurred, reportedly because of concerns that Chaudhry might declare Musharraf’s National Reconciliation Ordinance null and void, leading to reopening of corruption cases against Zardari; and Sharif withdrew his support from Zardari. Many Pakistanis expressed disappointment over how the coalition handled the issue. “In any transition, the last thing you want to see is a crisis at the beginning,” said Samina Ahmed, representative of the International Crisis Group in Islamabad. “I don’t think the politicians understand the gravity of the situation.”

The United States viewed the judges issue as an internal matter for Pakistan, and indeed the question became a domestic political football. But keeping its distance cost the United States allies, especially as U.S. officials expressed strong support for Musharraf long after his political fate was sealed. Many Pakistanis we spoke to speculated that American silence on the judges question stemmed from Chaudhry’s willingness to hear the cases of “missing persons” — Pakistanis who have been detained without due process, some of whom are suspects in the U.S. war on terrorism. However, recently many of the deposed judges (around 65 percent) have taken new oaths to rejoin the high courts and Supreme Court after the new government promised them their previous seniority. This government move was criticized by the lawyers movement, because it did not include Chaudhry’s restoration.

The United States should not place its security demands above the strengthening of constitutional norms. Specifically, U.S. officials should monitor whether President Asif Ali Zardari follows through on his promise of a constitutional package that would subordinate the presidency to parliament and to the prime minister, and would revoke the extraordinary powers that previous military governments had assigned to the president.

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12 For evidence of continued strong support for restoration of the pre-November 2007 judiciary, see the June International Republican Institute poll: http://www.iri.org/mena/pakistan/2008-07-16- Pakistan.asp.

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