Analyzing judicial crises in Asian

By Myint Zan

MELBOURNE, Australia (JP): The judicial and political crisis in Pakistan, with the resignation of President Farooq Leghari and the "suspension" by a Supreme Court Chief Justice Sajjad Ali Shah, seems to have been apparently "resolved" in favor of Prime Minister Nawaz Sharif.

This tug-of-war between the executive and judicial arms of the government in Pakistan raises a sense of deja vu and perhaps some crucial questions.

It is deja vu because a similar, perhaps even comparable crisis, erupted nine years ago in Malaysia with similar "causes of action" and eventual outcomes -- the removal of the Lord President Tun Salleh Abbas of the Malaysian Supreme Court on Aug. 8, 1988 after he was found by a tribunal to have acted with judicial impropriety.

In brief, Tun Salleh Abbas was found to have acted improperly because (among others) he had complained to the then King of Malaysia about comments made by Malaysia's Prime Minister Mahathir Mohamad, which strongly criticized segments of the Malaysian judiciary.

It should be noted that both Pakistan and Malaysia can be described as common law countries. Both spent many years under British colonial rule. Hence, not only many substantive and procedural laws but also aspects of their public laws, including their current constitutions, are roughly and generally based on the British common law model.

Both countries have in addition to the common law system a parallel, and in some senses, almost overlapping system in the form of Islamic law -- a feature which has become more prominent in the legal foundations and political developments of both countries in recent years.

The mode of battle between the executive and the judiciary in the Pakistani judicial crisis of 1997 and the Malaysian one of 1988 is notable.

Mahathir did strongly criticize the Malaysian judiciary. As most of his comments were made in Parliament they were considered "privileged".

Nawaz Sharif, in contrast, has had (albeit only for a brief while) his "day in court" for alleged contempt of the Supreme Court. However, the hearing against him has had to be suspended due to the actions of Sharif's supporters. The contempt proceedings against him appear now to be moot.

Heads of State were also involved in various ways in the constitutional crises of those countries. The then King of Malaysia was displeased with Tun Salleh Abbas for writing a letter of complaint to him about Mahathir. His displeasure gave the impetus for the Malaysian executive to move against the then Lord President of Malaysia.

Before his resignation, President Farooq Leghari supported the judiciary, or at least the Pakistani Chief Justice. With his resignation the constitutional and political crisis in Pakistan seems to have resolved in Nawaz Sharif's favor.

In Malaysia, the executive "won" and in Pakistan events seem to be moving in that direction.

What then are the philosophical implications that can be extrapolated from these two crises?

Mahathir is very fond of saying that "Western democracy" is not suitable for Asia. He preaches and practices a form of "Asian democracy".

Can we make a similar argument here in the legal field as well? Can we argue that "British" common law conventions which, among others, include constitutionalism, separation of powers and independence of the judiciary, are unsuitable for Asian countries, even those who have inherited common law legal concepts?

The executive prevailed over the judiciary in both Malaysia and Pakistan. Can this be viewed as a diminishing of the judiciary's independence in those countries?

Has the common law heritage of judicial independence become irrelevant?

To answer this question is to legally diversify since the concept that the judiciary or judicial functions should be free from unnecessary executive (rulers, kings) interference is a long established tradition and tenet of Islamic law, which even predated common law concepts of constitutionalism.

Hence if the executive encroaches upon or interferes with the legitimate functions of the judiciary, it is arguably and broadly speaking not only acting in opposition to British/common/Western concepts of constitutionalism but that of an established Islamic legal tenet.

Hence the thesis that "British" or "Western" concepts of constitutionalism do not work in Asian countries does not necessarily follow from the judicial crises that have occurred or are occurring in these former British colonies.

Another observation that can perhaps be made is that in analyzing constitutional and judicial developments, personalities and politics cannot be discounted. The combative, feisty and (some would say) ruthless personalities of Mahathir and Nawaz Sharif, together "with a little bit of luck" (in the words of the musical My Fair Lady) ensured their victories in their clash with their countries' judiciaries, or at least its top judicial personnel.

It is said that law is about power. However, in terms of human governance, it is also true that various political and legal systems have, with a checkered degree of success, struggled to limit the amount of power which a particular person, institution or branch of government can exercise.

The Pakistani constitutional tangle is an illustration not only about the fact that law is about power but that its functions, scopes and applications can be determined by power as well.

The writer is a lecturer at the School of Law of Deakin University, Melbourne, Australia.