Judging Umpires and Judges

Here come de judge! Here come de judge! The judge in this case isn’t Sammy Davis Jr. but the stern chief justice of the Supreme Court of Pakistan, Iftikhar Chaudhry, who became a folk hero when he stood up to then-President Pervez Musharraf in 2007.

In March that year, Musharraf suspended Chaudhry on charges of corruption because he wouldn’t extend Musharraf’s tenure by judicial fiat. In his struggle against the strongman, Chaudhry was supported by other judges, lawyers and Pakistanis in their millions.

Under national and international pressure, Musharraf agreed to elections in March 2008 that brought his political foes to power. Upon assumption of office the new prime minister, Yousaf Raza Gillani, reinstated Chaudhry, while Musharraf, under threat of impeachment, resigned.

Chaudhry’s activism didn’t stop there. He has since made frequent use of the suo moto power of the judiciary, by which it can try cases of wrongdoing on its own initiative. Making use of this power, Chaudhry has checked the military’s habit of illegal detention. He has also summoned his own son, who has been accused of selling influence. The speculation is that the chief justice will sacrifice his son in the pursuit of an ambition: the presidency.

Last month he dismissed the prime minister, Gillani — the prime minister who reinstated him — for repeatedly refusing to press corruption charges against Musharraf’s successor, Asif Ali Zardari. Pakistan’s Parliament has since elected a new prime minister, Raja Pervaiz Ashraf, who right away received an ultimatum from the chief justice to reopen the corruption case against Zardari, or face dismissal himself.

What if Ashraf defies the ultimatum and the chief justice dismisses him? And then what if Ashraf’s successor, who is likely to also belong to the Pakistan People’s Party of President Zardari, is also dismissed for the same reason? What will happen to Pakistan?

One tragic possibility is that the military will be tempted to step in and put a stop to this game of musical chairs. Then instead of serving democracy, Chaudhry will become the central figure in the pageant of its demise. What, really, is the role of judges in a democracy?

I followed on television the confirmation hearings of US Chief Justice John Roberts in September 2005. I heard him offer that metaphor of the judge being a baseball umpire: he makes the calls but he doesn’t make the plays. Roberts impressed me most when he said that a judge should have the humility not to usurp the powers of Congress, not to legislate by jurisprudence. Not to use the court to express his ideology.

Recently, Roberts practiced what he preached: he set firm limits on the oft-abused powers of Congress to regulate commerce but he also refused to strike down an existing law, Obamacare, and found a way to save it.

If this is not a wise law, he ruled, let Congress change it. Or let the people elect a Congress that will change it. This is judicial humility.

It’s not easy for a judge to exercise both suo moto and humility. That may be why this judicial power is absent in mature democracies where the legislature and the executive are generally regarded as dependably responsible.

In fragile democracies where the legislative and the executive branches are notorious for abuse of power, suo moto may be useful — to some extent. But not to the extent Chief Justice Chaudhry is practicing it. Too often he is both umpire and player, thereby paralyzing the baseball game of governance.

For the sake of Pakistan, let’s hope he is still capable of moderation. As a wise judge once said: “A society so riven that the spirit of moderation is gone, no court can save. A society where that spirit flourishes, no court need save.”

By Jamil Maidan Flores Posted in El Indio

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