Laying Down the Law in Pakistan
What the Facebook Ban Says About Pakistan's Judiciary
Article Summary and Author Biography
Beyond its implications for religion and free speech, Pakistan's recent ban on Facebook holds a deeper story -- that of the country's changing power structure and the shifting roles of its three institutional pillars: the government, the judiciary, and the military.
KATHRYN ALLAWALA works at Foreign Affairs.
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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.
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.
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