Sun Dec 8, 2013 by Anil Kalhan
Q&A: â€œThe SC Has Treated Judicial Independence as a Static Conceptâ€ (The News on Sunday, December 8, 2013)
(Interview for The News on Sunday, conducted by Farah Zia)
A serious student of Pakistanâ€™s judicial history, Kalhanâ€™s article Courting Power in last monthâ€™s Herald has been discussed and appreciated at length in the legal circles of Pakistan. His law review article on the judiciary in Pakistan, ‘Gray Zoneâ€™ Constitutionalism and the Dilemma of Judicial Independence in Pakistan appeared in the January 2013 issue of the Vanderbilt Journal of Transnational Law and is available here.
The News on Sunday: How would you, in a nutshell, assess the role of judiciary under Iftikhar Chaudhry?
Anil Kalhan: Chief Justice Iftikhar Chaudhry has presided over what arguably has been the most dynamic and transformative period for the Supreme Court and higher judiciary in Pakistanâ€™s history. But it would be misleading to speak in the singular of â€œthe Chaudhry Courtâ€, as a continuous institution during the entirety of his tenure as Chief Justice. In many ways, there have been two separate â€œChaudhry Courtsâ€, each playing a distinct role under very different political circumstances.
On one hand, from the time that Chaudhry ascended to become Chief Justice of Pakistan in 2005 to his unlawful ouster during General Musharrafâ€™s extra-constitutional state of â€œemergencyâ€ in 2007, the Supreme Court moved decisively away from its historical role as an institution that has validated military usurpation. During this period, the Court asserted an unusual degree of assertiveness vis-Ã -vis the Musharrafâ€™s military regime â€” for example, expanding its use of public interest litigation and suo motu powers, invalidating the regimeâ€™s privatisation of state-owned enterprises, and investigating disappearances arising from the US-led counter-terrorism campaign.
On the other hand, since Chaudhryâ€™s restoration to office in March 2009, what previously had been a conflict over judicial autonomy from the military has rapidly morphed into a conflict over judicial autonomy from an elected, post-Musharraf parliament. The Court has continued to assert its autonomy, as it had before Musharrafâ€™s emergency in November 2007 â€” and under a relatively simple understanding of â€œjudicial independenceâ€ we might be inclined to understand those assertions of autonomy as comparable, if not equivalent. But in asserting itself, the Court has often elided any distinction between the autonomy and power it claimed vis-Ã -vis Musharrafâ€™s military regime and the autonomy it now began to assert, even more forcefully, vis-Ã -vis the post-Musharraf civilian government.
Even though these assertions of autonomy might look similar in some ways, they carry very different implications.