When the United States was born, our founding fathers created a system of checks and balances with three very separate silos of power, each having a degree of blocking power and control over the others: we all know from school that they are the legislative branch – Congress, the Executive (which includes a pile of administrative agencies with regulatory powers) and Judicial. The guiding pillar in all this is the Constitution, and back to the very early case of Marbury vs. Madison (U.S. Supreme Court, 1803), the United States Supreme Court established that it alone is the ultimate arbiter of interpretation of that esteemed document. There is a mechanism for Congress to override the President, even remove him/her, and sufficient leeway in implementing Constitutional/statutory dictates to leave the p resident, as commander in chief of the military, sufficient to wield a lot of power.
There is the presumed battle of “strict constructionism” – reading the Constitution literally within its four walls versus looking at what the authors of that document believe was the necessity of flexibility of interpretation as time and historical contexts changed. For example, there is no basis for a separate Air Force in the Constitution, because the enabling provisions only dealt with the Army and the Navy. Further, our system of laws was built on the British system which allowed courts to apply common sense to issues brought before them – within statutory and Constitutional limits – creating precedents under the notion of “common law.” The Supreme Court often applies this theory to its decisions and often alters earlier precedents as the world changes. For example, they once held that wire-tapping phones did not violate t he Constitutional ban on unreasonable searches and seizures (Fourth Amendment), because there was no intrusion into the actual premises of the people whose phone was tapped. As technology grew more sophisticated and became a part of everyday life, they reversed that ruling.
The lack of an independent judiciary is at the core of dictatorships and elite ruling classes. The only hope for an ordinary citizen who may be the victim of some abuse of power by a governmental autocrat is the possibility that there is a higher body whose sole duty it is to overrule abuse and protect the citizenry. When a judge reports to the abusive autocrat, repression and hopelessness are the rule. You’d expect Americans to favor a strong independent judiciary in countries with democratically elected governments, but our sentiments might very well be determined by how that judiciary impacts any benefits or detriments to U.S. polices. We are famous for sacrificing democratic ideals in favor of crass pragmatism, supporting dictators who align with our interests, working to undermine and topple regimes – even popularly-elected ones – that generate policies that are antagonistic to those we support.
And so it is with Pakistan, a nation that, for all practical purposes, is governed in an almost feudalistic aggregation of rich families, whose names have been on the ballot in those times when the military has not seized power. Popular support aligns with one family powerhouse or another, but grassroots candidates achieving significant power are a rarity. When the military governed under President Pervez Musharraf, until he left office under a dark shadow, the Pakistani leadership, defying the populist leanings, aligned with the United States anti-terrorism policies. He removed Pakistan's Supreme Court Chief Justice Iftikhar Chaudhry, who opposed Musharraf and defied amnesty laws passed to exempt the senior officials (past and current) from prosecution for corruption and abuse of office, but Chaudhry is back, and judicial reform is now high on the national agenda. Until Chaudhry and this reform movement, the judiciary had been little more than a subservient branch of the nation’s chief executive.
The battle over the complex relationships that have controlled the judiciary to date is being accelerated by a reform measure that could change the shape of Pakistani governance forever (or at least until the next military coup): “And those relationships are likely to be tested in the tussle over a package of wide-ranging constitutional reforms that was due to be introduced to parliament on [March 26th], whose purpose is to reverse changes made by previous military rulers, trim the power of the presidency, and alter the procedure for Supreme Court appointments. The bill would take Supreme Court appointments out of the hands of the president, who now makes nominations after consulting with the chief justice, and place them before a government legal committee that also includes several justices. Unlike the present sy stem, judges would have to be confirmed by a parliamentary vote.” Time Magazine, March 27th.
The Chief Justice is also threatening to pursue the corruption charges with renewed vigor if the reform measures attempt in any way to curtail the limits of his power: “The proposed reforms have widened the rift between Chaudhry and the government that has grown since the Chief Justice last year struck down amnesty decrees by Musharraf that protected many senior figures in government — including [current President Asif Ali] Zardari himself once out of office — from prosecution on corruption charges. And some saw the Chief Justice’s hand in the eleventh-hour stalling of parliamentary debate on the package on [March 26th] by opposition leader Nawaz Sharif, who objected to proposals on the selection of judges. Sharif's opposition, some senior politicians suggest, results from being pressured by Chaudhry, who is allegedly opposed to having his own power in the selection of judges curtailed. ‘The chief justice threatened [Sharif]. He said he'd open up all cases against him,’ a senior leader of the ruling Pakistan People's Party said on condition of anonymity. ‘He's become an absolute dictator.’” Time.
Those in power – and maybe even our own policy-makers – might not want an independent judiciary that challenges the control over the country. But if we are truly champions of democratic reform, exactly where should our sensibilities lie in one of the most import elements of true freedom? Exactly how strongly do we believe in our own system of government… in our system of checks and balances?
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