What the Facebook Ban Says About Pakistan's Judiciary
By Kathryn Allawala
On May 19, news spread that Pakistan was blocking many open-content Web sites -- including Facebook, YouTube, Wikipedia, and Flickr -- after users complained about a Facebook page that was holding a competition encouraging users to draw caricatures of Muhammad. Before the ban, supporters used Facebook status updates to declare their intent to boycott the site. Many of those who were opposed updated their pages with messages that they would not be visiting the Web site until their government changed its mind. On the streets, the mood was darker. On one side, activists marched in favor of the move and called for even wider restrictions. On the other, another group demonstrated for the ban's immediate reversal.
In one sense, these events can be read as a sign of Pakistan's growing Islamization and the government's fear of social unrest. Acting at the behest of a group of lawyers called the Islamic Lawyers Movement, the Lahore High Court, the highest court of Pakistan's most populous region, argued that the courts had a responsibility to act against such a blasphemous offense. The government, which had favored blocking only the Facebook page in question, was apparently driven less by religious concern than by the desire to avoid a replay of the violent riots that shook the country following the 2005 Danish cartoon controversy.
Beyond the issues of religion and freedom of speech, however, lies a deeper story -- that of Pakistan's changing power structure and the shifting roles of the country's three institutional pillars: the government, the judiciary, and the military. Rather than simply a sign of creeping Islamism, the Facebook ban is an outgrowth of the power struggle that has consumed the judiciary and the government since 2007, when Pervez Musharraf's military dictatorship crumbled. Should these struggles persist, the third pillar might very well make a comeback.
Previous battles among Pakistan's three institutional pillars are evident in the nation's much-amended constitution, and the revisions to this document set the scene for the recent Lahore High Court ruling. As Humayun Akhtar Khan, secretary-general of the Pakistan Muslim League, recently wrote in Dawn, Pakistan's leading English-language newspaper, "Since Pakistan came into existence there has been a tussle between the politicians and the generals. When they assume power, the generals seek legitimacy and the politicians more power. Together, they shred the constitution to pieces." For the past 40 years, while the civilian government and the military have sabotaged the constitution, the country, and each other, the judiciary has stood quite helpless between them. But now its power is growing.
The institutional roles of Pakistan's three pillars solidified during the tenure of Pakistan's first popularly elected Prime Minister, Zulfikar Ali Bhutto, who came to power in 1971. During his seven-year rule, he used his constitutionally unrestrained power to ban opposition parties and centralize control over the provinces. In the meantime, he amended the country's constitution to set a fixed term for judges and gave himself the authority to transfer them between courts. The upshot was obvious: he could pack the high courts with whatever allies he wanted.
When his Pakistan People's Party (PPP) claimed 75 percent of the vote in the 1977 general election, it was a bridge too far and violent riots swept across the country. It was then that General Muhammad Zia ul-Haq, Pakistan's most notorious military dictator, stepped in to restore order and abolished the overly powerful role of prime minister. Shortly thereafter, he amended the constitution to shorten the tenure of the chief justice of Pakistan, who was forced to retire immediately. By the fall of 1977, a pliant Supreme Court had officially validated his coup, and he became president. The court's action set a dangerous precedent: the civilian government would amass power and become corrupt, the military would intervene, and the courts would provide it with legal cover.
Over the next few years, Zia further weakened the courts. He forced judges to take oaths of allegiance to him and set up the Federal Shariat Court, an Islamic court independent from the federal courts with judges beholden to him. By the mid-1980s, Zia turned his attention from reforming Pakistan's judiciary to reforming its civilian government. He reinstated the post of prime minister and pushed an amendment through parliament that gave the president the ability to dismiss the prime minister and the National Assembly. Not only did the move further legitimize his dismissal of Bhutto it also put him at the center of Pakistan's political system and ensured that no one in government could cross him -- and no one did.
In fact, it wasn't until popularly elected civilian politicians returned to power after Zia's death, in 1988, that the amendment was ever invoked. And in the decade that followed, no democratically elected prime minister finished his or her term: Prime Minister Benazir Bhutto was dismissed by the president twice, in 1990 and 1996; and in between, Prime Minister Nawaz Sharif was dismissed once, in 1993. The presidents cited incompetence, corruption, and nepotism in each case.
After Bhutto was ousted in 1996, Sharif was again elected to office. He was determined to reform the constitution and put an end to the government's clashes over power -- mostly by vesting all of it in himself. In addition to revoking the amendment that gave the president the power to dismiss him, he passed another to give party leaders (namely, him) the power to dismiss any legislator who failed to vote with the party head. In 1997, when the Supreme Court attempted to invalidate some judicial appointments Sharif had tried to make, he had party members storm the court and forcibly banish the chief justice and the president.
Sharif's unchecked rule spurred violent protests across the country, cueing Pakistan's military to intervene. In 1999, General Pervez Musharraf seized power. The coup was widely popular, and the Supreme Court quickly and unanimously validated it. To restore functioning governance, Musharraf, now president, amended the constitution to once again empower the president to dismiss the prime minister. This completed Pakistan's second tour through the cycle of civilian corruption and military intervention followed by a judiciary rubber stamp on the process.
In 2007, however, something surprising happened: a burgeoning civil society, a more professionalized class of young lawyers, and widespread fatigue after eight years of Musharraf's increasingly unpopular rule invigorated the judiciary. With elections looming, Musharraf needed the Supreme Court to renew an earlier ruling that he could remain head of the military and still run for president. The court refused to do so, and Musharraf attempted to dismiss its chief justice, Iftikhar Muhammad Chaudhry. In reaction, a peaceful movement of lawyers for the reinstatement Chaudhry and the ouster of Musharraf swept the country. The political parties were able to capitalize on the movement, and the PPP won the 2008 elections. Shortly thereafter, Musharraf left the country.
For the first time in Pakistan's history, it appeared that the government and judiciary would be empowered at the expense of the military, putting an end to the country's political problems. A more powerful judiciary, people hoped, would temper the worst of the civilian politicians' inclinations to amass power. And in turn, the government would be less vulnerable to military intervention because the military had historically only stepped in when the politicians' corruption led to political breakdown and popular unrest.
Now it appears that many battles between the judiciary and government loom on the horizon. Early this year, the government decided to amend Pakistan's constitution, proclaiming that it was strengthening the country's democratic institutions. The new amendment, the constitution's 18th, which passed the National Assembly in April, yet again revokes the main presidential power -- the right to dissolve the National Assembly and dismiss the prime minister. The PPP has argued that the amendment replaces the imbalanced, quasi-presidential system (which they see as a legacy of Pakistan's military dictators) with a more democratic, fully parliamentary, and stronger one. Even though the bill renders President Asif Ali Zardari little more than a figurehead, he nonetheless claimed at the signing ceremony: "I do not find myself powerless because my power is democracy and people of the country."
Certainly, the amendment restores the balance of power to Pakistan's National Assembly and strips some remaining vestiges of the military dictatorships from the constitution: it nullifies Zia's and Musharraf's major constitutional amendments, and even removes every mention of Zia's name. And safe from being sacked by the president at whim, Prime Minister Yousaf Raza Gillani might be able to lead the National Assembly to take up matters -- such as the country's economic problems and ongoing energy crisis -- that Zardari had neglected or over which he had been deadlocked with the main opposition party, the Pakistani Muslim League (PML).
The by-product of the judiciary's increasing power will be plenty more cases such as the Facebook ruling, where the court system tests its limits and tries to eke out further control. But troublingly, the amendment removes from the constitution a clause that mandated regular intraparty elections, and it does nothing to address the power of party heads to remove rogue legislators. This means that Sharif -- who remains head of the PML but has been barred from holding elected office because of criminal charges against him (until the 18th Amendment changed this rule in order to get the PML vote) -- could dismiss parliamentarians of his party who do not vote as he directs on a range of issues. Although Zardari has been divested of much of his official power, he and his 22-year-old son, Bilawal Bhutto, remain co-chairmen of the PPP. It is unlikely that Gillani, now technically the most powerful PPP member in parliament, will take up legislative matters that Zardari doesn't approve. Nor will the PML cross Sharif. Without internal democracy, the major parties will remain conduits for personal power and new ideas will be crowded out. Progress on Pakistan's most pressing problems will remain stalled, as Zardari and Sharif continue to clash. Unfortunately, this sets the government up for a collapse and military similar to those of 1977 and 1999.
The wild card this time is the judiciary. Already the Supreme Court has decried the amendment as unconstitutional, arguing that these measures undermine democracy as laid out in Pakistan's 1973 constitution. It has also taken issue with the new commission to appoint judges, which will include representatives from the National Assembly, that the 18th Amendment mandates. At the same time, it has begun hearings on whether Zardari is legally able to hold the posts of president and PPP party head at once, and has started corruption cases against many leading politicians.
The by-product of the judiciary's increasing power will be plenty more cases such as these and the Facebook ruling, where the court system tests its limits and tries to eke out further control. Tellingly, the government did not speak out publicly against the ban when it was enforced, even though it had been opposed to shutting down pages and Web site other than the Facebook page with the "Draw Muhammad" contest. Indeed, this ban was a well-selected bit of judicial activism; since Islamic morality is such a divisive topic in Pakistan, the government would not be able to condemn the Lahore High Court without inciting a potentially violent response. Although the Supreme Court has now rolled back the ban, it has left open the possibility for the courts to censor offensive material in the future.
Given Pakistan's weak constitution and poorly institutionalized government, there is no guarantee that total judicial independence from elected politicians (even the terribly corrupt, power-hungry ones) will be a good thing. For all the professional and moderate lawyers and judges, there are plenty who are corrupt, are carrying out personal vendettas, are in the pockets of those who appointed them, or are beholden to religious groups such as the Islamic Lawyers Movement. If these kinds of rulings monopolize the judiciary's agenda, distracting it from the more pressing task of moderating a government that looks to be repeating the same mistakes as civilian governments past, Pakistan's empowered second pillar may end up being yet another problem. As always, the country's third pillar waits in the wings, ready to step in if the situation should get out of hand.
KATHRYN ALLAWALA works at Foreign Affairs.