In Constitutional Showdown, Pakistan Supreme Court Cites Quaint Olmstead v. US on Rule of Law

Pakistan's Supreme Court today cited Louis Brandeis' eloquent dissent in Olmstead v. United States

The precarious hold that Pakistan’s civilian government has on power took another severe blow today, as the Supreme Court handed down a decision (pdf) which threatens to find Prime Minister Yousuf Reza Gilani unfit to hold office. At issue is the failure of Pakistan’s executive branch to implement a number of corruption probes ordered by the Supreme Court when it overturned the 2007 National Reconciliation Ordinance in 2009. The NRO had provided amnesty to a number of political figures and parties in paving the way for a US-brokered planned transition from a Musharraf government to a likely Bhutto government. President Asif Ali Zardari’s government has steadfastly refused to implement the probes, citing immunity. Ironically, the Supreme Court cited the 1928 case Olmstead v. United States, in which the US Supreme Court upheld the use of illegal wiretaps in the prosecution of a bootlegger. The passage cited by Pakistan’s Supreme Court is from Justice Brandeis’ dissent and is an elegant call to observe the rule of law. Although Olmstead v. United States eventually was overturned, it is particularly ironic that Pakistan’s Supreme Court would cite this case in responding to executive branch claims of immunity at a time when the US is once again litigating the extent of executive branch and corporate immunity in a new era of illegal government wiretaps.

In documenting the crisis, Dawn quotes Supreme Court Justice Asif Saeed Khosa:

Tuesday, Supreme Court’s Justice Asif Saeed Khosa remarked that despite clear court orders, the government and the NAB [National Accountability Board] were not serious about implementing court orders, DawnNews reported.

Justice Khosa said that the apex court was giving a last chance to the government to implement its verdict on the National Reconciliation Ordinance by Jan 16.

He said in case of non-implementation, the court would be forced to take certain steps which would not be “pleasant”.

Khosa goes on to complain that the government has had over two years to respond to the overturning of the NRO, but refuses to act:

He moreover referred to President Asif Ali Zardari and said that the president had, “in an interview, refused to accept the court’s orders”.

The prime minister and the law minister also publicly refused to accept the apex court’s orders, Justice Khosa said, adding that the president and the prime minister preferred loyalty to party over loyalty to state.

It is in response to this failure to act that the written decision cites Justice Brandeis’ dissent in Olmstead v. United States:

In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.

Gosh, Brandeis had such a quaint view on the need for the government to adhere to the rule of law. If only that attitude were more prevalent today. Sadly, both the executive and legislative branches of today’s US government seem to view such an attitude as outdated.

More details on the crisis come from AP:

The conflict with the court has been brewing since 2009, when judges struck down an amnesty protecting President Asif Ali Zardari and hundreds of other politicians from prosecution on graft and other charges, and ordered cases against them reopened. The government has resisted doing this, arguing that the president has immunity from prosecution.

Some independent commentators say the Supreme Court, which in the past has frequently been dragged into political disputes and on three occasions sanctioned military coups, is hostile to the current administration and is working with the army to oust it by “constitutional means.”

A five-judge panel accused the government of “willful disobedience” and said “the buck stops” at the office of Prime Minister Yousuf Reza Gilani, who it said was “dishonest.” The ruling warned that the court could declare him unfit to hold office and dismiss him if he does not implement its earlier verdicts.
It ordered the attorney general to appear before the court next week to explain the government’s foot dragging.

With only one week to respond to the Supreme Court, it appears that the Zardari government is now backed into a corner, especially with constitutional issues also looming over the memogate controversy. If the analysts cited by AP are correct that the court is now siding with the military, they have now set the stage to begin dismantling the government as early as next week.

14 replies
  1. emptywheel says:


    So it’s our illegal executive branch that is the anarchist, not the protestors?

    Incidentally, did you see they’re threatening to arrest Musharraf for non-cooperation with the Bhutto inquiry?

    Maybe Pakistan should arrest all of their former leaders and start over.

  2. Benjamin Franklin says:


    This is what comes from ‘end justifies means’ moral failures of our government this past decade. Like it or not, the US has been the leading Nation of the free world in so many respects. Our example, especially with regard to the Rule of Law, has been diminished. It’s like a border-line personality disorder; anarchy scares us but Nihilism is Hokay.

  3. Bob Schacht says:

    A minority opinion by Judge Brandeis is worth more than a majority opinion by today’s Roberts Court. What has happened to our time-honored tradition of Republican Judges drifting slowly leftward after rising to the Bench?

    Bob in AZ

  4. Jim White says:

    @emptywheel: Yes, Musharraf has been saying that he has a number of retired military in his entourage and that they will be able to take care of things when he comes back into the country. He’s currently scheduled to return toward the end of this month, so things are coming to a head on many fronts at once.

    And yes, I really love Brandeis on the source of anarchy. That passage is just priceless and timeless.

  5. JTMinIA says:

    I just had a weird thought, maybe partly because I was just reading a piece on Santorum.

    Wouldn’t it be fun to create a new Google-bomb that credits the quote “If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy” to Joshua Claus?

  6. Benjamin Franklin says:

    @Jim White:

    Does Musharraf have more friends than Bhutto did? Despite his imperious attitude, I always thought Musharraf had some scruples which were not available for public viewing. I suspect that means he will not be missed by the Paks if Bhutto’s fate awaits.

  7. Jim White says:

    @Benjamin Franklin: There’s no question his friends have more and better weapons than Bhutto’s. As for his scruples, I’m agnostic. He comes off as pretty charming dealing with the US (I remember a particularly fun appearance on Daily Show), but didn’t most of the AQ Kahn/ISI crap go down on his watch?

  8. Gitcheegumee says:

    @Jim White:

    With regards to your “charming” comment about Musharraf, and a special hat tip to’s a “weird” observation:

    Charm…C harm…

    (And FWIW, I have in the past posted many a Brandeis telling that both Brandeis and FDR have been relegated to history’s garbage disposal and reduced to extraneous effluent.)

  9. Jim White says:

    Oh my. From Dawn:

    President Asif Ali Zardari on Tuesday said that he was ready to give up his seat if his party (PPP) and coalition partners desire, dawnNews reported.

    The president along with Prime Minister Yousuf Raza Gilani was presiding over a meeting of parliamentary leaders of coalition partners at the Presidency in Islamabad.

    The president has also called a session of the National Assembly on January 12.

    What will happen at Thursday’s meeting?

  10. Jim White says:

    Well imagine that. It appears there was a new drone strike in Pakistan today, the first in almost two months. My Twitter feed on the search term “Zardari” has lots of speculation this was done to ease the pressure on Zardari.

  11. CTuttle says:

    Jim- did you see this little firecracker..?

    China planning military base in Pakistan, Indian report says

    China is planning a military base in Pakistan, India Today reported, citing “a secret report prepared by the government’s joint intelligence committee.”

    …According to the report:

    China is keen to build military bases in FATA, or the Northern areas, while Pakistan wants to counterbalance Indian naval forces by having a naval base in Gwadar. But it does not spell out the exact location of these bases.


Comments are closed.