Elena Kagan and Iftikhar Chaudhry: Another bad call by Kagan

It seemed, no doubt, the fashionable thing to do at the time, and as in all Supreme Court nominee Elena Kagan’s close relationships with Islamic law and Shariah jurists, she may have just wanted to please her Saudi donors supporting Harvard’s Islamic Legal Studies Program when she was Harvard’s law school dean.

On March 9, 2007, Chief Justice of Pakistan, Iftikhar Chaudhry had been deposed by President General Pervez Musharraf in a complex dispute that included the issue of independence of the judiciary.  Protests ensued from Pakistani lawyers and judiciary.  On November 3, 2007, Musharraf dissolved the courts and parliament, and Chaudhry responded (each has his own power base) by ordering the country to disobey the order.  Within days, under Elena Kagan’s direction, the Harvard Law School Association awarded Chaudhry the prestigious “Harvard Law School Medal of Freedom” award, in-absentia.  A year later, November 19, 2008, Elena Kagan presented the award to  Chaudhry in person.   Musharraf later resigned, and on March 16, 2009, the Prime Minister Gilani  re-appointed Chaudhry as Chief Justice.

So far so good – except that Chief Justice Chaudhry, that Kagan worked to re-establish with Harvard Law School’s most prestigious award, is now imposing Shariah law on the rest of Pakistan’s government.

As George Bruno, a Clinton-era Pentagon official reported on March 12, 2010 in the New Jersey Star Ledger:

Most recently, and contrary to the constitution of Pakistan, Chaudhry usurped the right of appointment of vacancies in the court from the elected prime minister and president…

… In a previous ruling, Chaudhry reaffirmed the right of the court to disqualify members of Parliament, the president and all ministers of the cabinet from serving if they are not of “good character,” if they violate “Islamic injunctions,” do not engage in “teaching and practices, obligatory duties prescribed by Islam,” and if they are not “sagacious, righteous and non-profligate.” The chief justice affirmed that non-Muslims must have “a good moral reputation.”

Reagan-Era Department of Defense attorneys David Rivkin and Lee Casey in a February 23, 2010 oped in the Wall Street Journal noted that Kagan’s award-winner Chaudhry is invoking “Article 62″ of the 1985 Pakistani Constitution in order to apply Shariah law (those “Islamic injunctions”).

Rivkin and Casey note that Chaudhry’s legal ruling…

thrusts the Pakistani Supreme Court into an essentially religious domain, not unlike Iranian Sharia-based courts. This behavior is profoundly ill-suited for any secular court. While Article 62 was not formally repealed, it was discredited and in effect, a dead letter. The fact that the petitioner in the NRO case sought only to challenge the decree based on the nondiscrimination clause of the Pakistani Constitution and did not mention Article 62 makes the court’s invocation of it even more repugnant. Meanwhile, the decision’s lengthy recitations of religious literature and poetry, rather than reliance on legal precedent, further pulls the judiciary from its proper constitutional moorings.

The US Senate has so little on which to base a decision on Kagan’s nomination to the US Supreme Court, so her bad judgment in matters like this award to Chaudhry should be taken into account. The Harvard award she gave to Chaudhry helped legitimate the powergrab he is now making to impose Shariah law across Pakistan’s government.

Decisions have consequences.  Kagan’s support for Shariah law – of course, “integrated” with a Shariah-compliant constitution, as Chaudhry is “integrating” it here – may have seemed trendy in 2007.  Or in 2008.

But in 2010, her Shariah awardee is devastating the Pakistani rule of law.

What will she do on the US Supreme Court to the rule of law here?