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VIEW: The executive-judiciary tussle ?Ayesha Ijaz Khan

The confrontation between the executive and the judiciary, not to mention within the legislature, is poised to begin. This is not a bad thing. This is the nature of democracy. It is only through such struggles, resistance and defiance that the ideas of checks and balances and the separation of powers came into being

Since the judicial verdict on the
controversial NRO became public, there has been constant debate on a confrontation between the executive and the judiciary in Pakistan. Of interest in this context is President Obama?s comment at his first State of the Union address, in which he criticised the US Supreme Court for its recent ruling whereby corporate campaign spending limits were removed. Obama derided the decision as opening ?the floodgates for special interests, including foreign corporations, to spend without limit in our elections?.

Predictably, Obama?s opponents have pounced on the statement, going so far as to say that he insulted the justices sitting in robes before him. Noteworthy was the reaction of Justice Samuel Alito who shook his head as Obama made his remarks and mouthed the words ?not true? and as the camera caught him, ?simply not true?, he mouthed.

Justice Alito, a President Bush appointee, had voted for the recent controversial decision that President Obama criticised. In fact, the character of the US Supreme Court has been considerably altered during President Bush?s eight years in office. Appointments like those of Justice John Roberts to replace the respected Justice Sandra Day O?Connor, who had asked for retirement for personal reasons, allowed President Bush to pack the Court with judges whose views tilt far more to the right than President Obama?s.

Although President Obama has managed to appoint Justice Sonia Sotomayor (the first Hispanic on the US Supreme Court) in the one year that he has held office, it has not offset the tilt of the Bush era Supreme Court, which recently passed a landmark ruling in a 5-4 vote, overturning laws that had been in effect for decades and thus allowing corporations to use their own money to support or oppose candidates for public office. President Obama has pledged to work with Congress to ?develop a forceful response? to the Court?s ruling.

To reform-minded individuals, American democracy has had a history of being beholden to lobbyists and special interests and the Supreme Court has enhanced the potential influence of these powerful groups at the expense of the ordinary person. Representative Alan Grayson described it as follows: ?It basically institutionalises and legalises bribery on the largest scale imaginable. Corporations will now be able to reward the politicians that play ball with them ? and beat to death the politicians that don?t...You won?t even hear any more about the Senator from Kansas. It will be the Senator from General Electric or the Senator from Microsoft.?

The British press, always quick to point out flaws in the American system, ran an article by Johann Hari in The Independent (January 29, 2010) entitled, ?This corruption in Washington is smothering America?s future?. In the piece, it is argued that funding by special interests is the main reason that the US has not provided healthcare to its poorest. As an example, Joe Lieberman?s case is cited. Senator Lieberman has, according to the article, taken $ 448,066 in campaign contributions from private healthcare companies. In addition, his wife has earned $ 2 million in her capacity as one of their chief lobbyists. As a result, Senator Lieberman has blocked any attempt to broaden healthcare coverage.

It remains to be seen whether or not President Obama will be successful in taking on the special interests that represent healthcare, big corporations and banks. As his opponents on Fox News remind us, President Obama too was the recipient of funding from many bankers and hedge fund owners. George Soros, a well respected Wall Street financier, was instrumental in organising campaign contributions and thus carried weight in the Obama campaign, even if he did share much of Obama?s liberal agenda.

Nevertheless, the confrontation between the executive and the judiciary, not to mention within the legislature, is poised to begin. This is not a bad thing. This is the nature of democracy. It is only through such struggles, resistance and defiance that the ideas of checks and balances and the separation of powers came into being.

What is happening in the US can also be educational for us in Pakistan. If the executive feels the judiciary is overstepping, or as has been said in some circles, conspiring against it, then the proper way to respond is by working with parliament. If the Supreme Court has transgressed by citing the controversial provisions of Articles 62 and 63, and it can be argued that it has, then the appropriate response is to do away with the problematic aspects of those provisions by rallying the legislature to this cause.

In the tussle between the executive and the judiciary, or indeed between any two branches of government, it is important to remember that at the end of the day it is popular support that establishes legitimacy and thus the authority to govern or even function at a high office is greatly dependent on the sentiment of the people. Although this too may have its shortcomings as not every populist measure is the right one; it is nevertheless too important a principle to ignore.

And while President Obama is speaking out against special interests that the Court is allegedly protecting at the expense of the common man, in Pakistan, it is largely believed that it is the Court that is standing up for the common man while the executive is interested in self-gain. Unless steps are taken to alter this perception, the executive will find it difficult to win this tussle.

President Obama wisely commented that a trust deficit is more crucial than a financial deficit. Trust deficits become more acute in recessions and times of crises, even if they are not of the current government?s making. As President Obama remarked, the wars in Iraq and Afghanistan as well as the financial crisis were well under way before he ?walked through the door?. President Zardari would be well within his rights to say the same in Pakistan. The war in Afghanistan, terrorism at home as well as the electricity and sugar crisis were not of his making. These were issues he inherited. But unless efforts are made by him to address the trust deficit, even the deference that is his due will not be forthcoming. Leadership is about setting examples, sacrifice, and leading from the front. If that is done, he may be surprised at how forgiving our people can be.

The writer has worked for American and Pakistani law firms and currently writes as a political analyst based in London. Website: www.ayeshaijazkhan.com

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