Academic journal article Harvard Law Review

The Pakistani Lawyers' Movement and the Popular Currency of Judicial Power

Academic journal article Harvard Law Review

The Pakistani Lawyers' Movement and the Popular Currency of Judicial Power

Article excerpt

"I support the lawyers," said the Pakistani farmer on the train from Lahore, "because if Musharraf can do whatever he wants to this man, the Chief Justice of Pakistan, then none of us is safe." (1) It was the summer of 2008, and for several months Pakistani lawyers had been leading protests seeking the restoration to office of sixty-plus superior court judges, (2) including Chief Justice Iftikhar Mohammad Chaudhry, who had been suspended by President Pervez Musharraf. (3) The farmer's response to questions about his thoughts on the protests was typical of Pakistanis at the time in its clear-headed articulation of the symbolic importance of the lawyers' struggle and in its implicit understanding of the central function of an independent judiciary. Indeed, the Chief Justice was the closest to a personal embodiment of "the law" that one could find in Pakistan. If even he served at the pleasure of a dictator--so the story went--the capacity of the law to constrain this dictator and protect ordinary Pakistanis was perilously weak.

In March 2007, Chaudhry refused the urging of five generals to resign and was removed by Musharraf. Two years later, with Musharraf in exile and a civilian government in power, nationwide protests returned Chaudhry to his position atop the nation's highest court. (4) After twenty-four months of struggle, the lawyers' movement thus ended with an improbable victory. Moreover, in a nation where the courts historically have followed the dictates of the military and allowed for the repeated subversion of the country's constitutions, (5) the restoration of the Chief Justice was a compelling sign of judicial empowerment. The sixty-odd judges who had stood with Chaudhry and refused to sanction Musharraf's extraconstitutional acts had all been returned to their posts, (6) while those judges whom Musharraf had appointed to replace them would soon be removed. (7) The success of the movement offered a stern warning to those who would challenge the independence of Pakistan's judiciary. History proved that Musharraf could not, in fact, "do whatever he want[ed]." An outspoken Chief Justice, a rebellious cohort of judges, thousands of lawyer-activists, dozens of resurgent civil society groups, opportunistic political parties, a sympathetic media, and hundreds of thousands of ordinary Pakistani protesters enforced a version of judicial supremacy against "the dictator."

The sights and sounds of the lawyers' protests represent forms of social action unique in the history of judicial politics: suit-clad lawyers, marching en masse, at the center of often bloody street protests; a deposed Chief Justice on a cross-country speaking tour, thronged by citizens tossing rose petals and singing songs of praise in his direction. Indeed, the statement at the beginning of this Note, in which a farmer identified his own safety with that of a Chief Justice, exposes a tantalizing potentiality: by taking the cause of judicial independence to the streets, the lawyers' movement seems to have collapsed the traditional distinctions between court and public that have so animated the academic discourse on judicial power.

This Note explores how and why this popular mobilization on behalf of judicial power occurred and its broader effects in Pakistan. In doing so, the Note throws into question some of the central assumptions of much of the literature on judicial independence and the rule of law. Specifically, whereas much of this literature observes that judicial power often emerges from a top-down process dictated by the rational self-interest of political elites, the history of the lawyers' movement in Pakistan provides at least some evidence that judicial power has a popular currency and an ability to open up new forms of political engagement and new arenas of political power.

The Note is organized as follows: Part I summarizes some of the extant literature on the roots of judicial power generally, while Part II offers a brief history of the lawyers' movement. …

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