Supreme Courts and Democracy in Egypt, Pakistan and the United States

Pakistan’s Supreme Court recently forced the prime minister from office. And a couple of days ago, Egypt’s Supreme Court ruled that the military cannot arrest civilians.

For the most part, this new judicial activism strikes me as salutary in the Middle East and South Asia. Contrast it with what the justices are doing in the US, where they are ornaments of the 1%, not oracles of the people..

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GRAND MIDDLE EAST AND SOUTH ASIA

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THE NEW ASSERTIVE ROLE OF APEX COURTS

by Juan Cole
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As the US Supreme Court prepares to strike down important elements of the universal health care plan, it is worth considering that all of a sudden the courts are playing an outsized role in the aftermath of the fall of the dictators in the Greater Middle East. .One of the concomitants of the outbreak of parliamentary democracy in the Greater Middle East has been a newly assertive role for the third branch of government, the courts. It is worth pondering the change as the US Supreme Court deliberates the fate of the Justices from the Nile to the Indus have been intervening in politics and even challenging the military.

It seems to me that a lot of punditry on the Arab upheavals has been superficial, attending to personalities or to stereotypes, and that the remarkable rise of the courts has been neglected.

Pakistan’s Supreme Court recently forced the prime minister from office. And a couple of days ago, Egypt’s Supreme Court ruled that the military cannot arrest civilians. For the most part, this new judicial activism strikes me as salutary in the Middle East and South Asia. Contrast it with what the justices are doing in the US, where they are ornaments of the 1%, not oracles of the people.

It started in Pakistan, not in Turkey or Iraq. In March of 2007, military dictator Gen. Pervez Musharraf summarily dismissed Chief Justice Iftikhar Chaudhry. Chaudhry had been insisting on habeas corpus for individuals arrested as terrorism suspects, whom Musharraf had simply made disappear. The Chief Justice wanted them produced in court.

There were some other disputes between the two, but likely it was Chaudhry’s challenge to the indefinite detention of suspects, without even allowing their families to know where they were or if they were alive, that provoked the crisis. (It is likely that Pakistan had turned some of the prisoners over to the US Central Intelligence Agency, which ran black torture sites, making it rather hard to retrieve them so as to produce them in Husain’s court.)

It must have come as a shock to Musharraf that the legal establishment and the public in Pakistan did not take this affront lying down. There were massive rallies in Lahore and elsewhere, even though Pakistan was still under martial law, staged by the phalanx of barristers, clerks and other denizens of the court system, often supported by college students and other members of the public. Musharraf started to look as though he might not survive. He was pressed to become a civilian president. But the Pakistani constitution contained a provision that an active duty officer could not become president unless he had been out of service for two years. When Musharraf came to understand that the Supreme Court was going to declare him ineligible to be president even if he took of his uniform, the dictator dismissed the entire court and replaced it with justices who would do his bidding.

This further high-handedness only provoked more demonstrations and instability. By February of 2008, Musharraf was forced to allow relatively free and fair parliamentary elections, in which the Pakistan People’s Party and the Muslim League were the victors. By August of 2008, the new parliament was preparing to impeach Musharraf for corruption, and he had to step down.

The Pakistan People’s Party managed to put together a government, and elected as president Asif Ali Zardari, widower of PPP leader Benazir Bhutto– who had been assassinated in late December of the previous year. The legal establishment had played a role in ending the military dictatorship.

When Zardari himself dawdled about reinstating Chief Justice Iftikhar Chaudhry, his rival Nawaz Sharif of the Muslim League led a long march to the capital to protest. Ultimately the chief justice was reinstated. People in Pakistan really cared about who was on their Supreme Court, and staged large rallies on the issue.

Zardari is very corrupt, and the Supreme Court wanted the prime minister to open an investigation into him. The PM, Yousuf Raza Gilani, declined to open an investigation. A couple of weeks ago, in an unprecedented move for Pakistan, the Supreme Court dismissed him from his office.

How resilient the parliamentary system is, is demonstrated by how quickly the crisis was dealt with. The president simply appointed a new prime minister, who gained overwhelming support in parliament.

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Pakistani courts have helped keep politicians honest.

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In Egypt, it was the Supreme Court who dissolved parliament because of campaign irregularities. But lest we conclude that they are just still just representatives of the old regime, the courts then went on

to strike down the authority of the Egyptian military to arrest civilians.

From pushing the prime minister out of office (and hounding the president) in Pakistan to dismissing the entire elected parliament in Egypt, the courts in the Greater Middle East are tackling weighty issues and even intervening in governance. They are making the case for the rule of law, however, in places where the law was the fiat of the ruler. As former PM Gilani discovered, disregarding the justices can be a fatal mistake politically.

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Juan Cole (born October 1952) is an American schoolar, public intellectual, and historian of the modern Middle East and South Asia. He is Richard P. Mitchell Collegiate Professor of History at the University of Michigan. As a commentator on Middle Eastern affairs, he has appeared in print and on television, and has published several peer reviewed books on the modern middle East. Juan is a translator of both Arabic and Persian. Since 2002, he is running his weblog ‘Informed Comment (juancole.com)

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