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Dismissal of chief justice causes political crisis in Pakistan

Zafar Bangash

Already beset by numerous problems, both domestic and international, Pakistani president General Pervez Musharraf has shot himself in the foot again by taking on the country's judiciary as well. Justice Iftikhar Mohammad Chaudhry, the Chief Justice of the Supreme Court, was sent home for allegedly "abusing his authority", and placed under virtual house arrest. For a dispensation that has seldom respected the law to accuse the chief justice of misdemeanors is disingenuous. Pakistan's controversial and unpopular president, dressed in army fatigues, summoned the chief justice to his office and told him that he had been made "non-functional", whatever that means.

That was on March 9; since then the Pakistani scene has been chaotic, with lawyers holding daily rallies and the police reacting with their usual brutality. Lawyers in black suits with bloodied heads as a result of police beatings not only made shocking television footage but also showed the establishment's true colours. The police also attacked Pakistan's Geo-television station and smashed its equipment on March 16 for showing TV footage of the police manhandling the chief justice. If the highest legal officer of the land is not immune from such rough treatment, what chance do ordinary citizens have? Nisar Saeed Shaikh, one of three deputy attorney generals, has resigned, as have a number of other judges, in protest against the mistreatment of the chief justice. The ongoing crisis has weakened Musharraf considerably and may even lead to his downfall.

The chief justice's real crime is that, unlike his predecessors, he took his responsibilities seriously and was not willing to roll over for the establishment, especially the military, by hiding behind the "law of necessity" argument. Last year he demanded that the government produce missing persons believed to have been kidnapped by the myriad intelligence agencies. Last month, he dared suggest that Musharraf might not be eligible to remain army chief as well as president, and that it is unconstitutional for him to be "elected" president through the existing assemblies. A reference was to be lodged in the Supreme Court on this issue, and Justice Chaudhry made it known that he would entertain it. Such judicial independence does not sit well with the military, which regards itself as above the law and its privileges as sacrosanct.

For months there was vigorous debate in the country about the chief justice's activism. Finally the judiciary was doing something right, much to the delight of ordinary people; however, this irritated the social and political ‘elites' in Pakistani society, who believe that they should be able to flout the rule of law without fear of judicial reprimand. Chief Justice Chaudhry's ruling that the sale of the Pakistan Steel Mill at throw-away prices should not proceed has embarrassed both the prime minister, Shaukat Aziz, and the military, which was the main beneficiary of the deal. The Chief Justice summoned government officials to explain their poor performance when dealing with civilian complaints, and he would brook no governmental interference in the judiciary's work. In a country where the culture of entitlement and privilege reigns supreme, this was tantamount to heresy; how could the chief justice side with the downtrodden against the powerful?

The campaign against him was launched through Naeem Bukhari, a flamboyant television personality who also happens to be an advocate at the Supreme Court. Bukhari's background fits the Pakistani elite culture. He is the ex-husband of Tahira Syed, a Pakistani singer whose mother (Malika Pukhraj) gained notoriety as a singer and dancer in her own days; a building in Lahore's red-light district still bears her name. Armed with such impressive credentials, Bukhari accused the chief justice of demanding elaborate protocol and showing favouritism by getting his doctor son to become a police officer. Even if true, such allegations do not warrant sending the country's chief justice packing home and getting him roughed up by the police. Besides, the reference made by the government against the Chief Justice that was finally made public on March 20 also implicates the prime minister's secretariat and the establishment division, so how could the government accuse only Chief Justice Chaudhry of wrongdoing? Legal experts, including former judges, have said that the president does not have authority to make a justice "non-functional", but the military has never been constrained by legal niceties.

In Pakistan, the culture of corruption is so pervasive that government officials consider all public assets (from cars, telephones and helicopters to employees of state institutions) as their personal property. The frequent foreign trips of government officials, including Musharraf, are made in the company of an army of sycophants at the state's expense. This even includes pilgrimage to the Hijaz. There is perhaps no other country in the world where there are different classes of VIPs; a simple VIP designation is not enough: Pakistan has a VVIP category for those who think they are a cut above the rest. They not only insist on elaborate protocol but also demand that sirens must blare as they travel through the country's clogged streets to announce the arrival of some very important person. All traffic is brought to a standstill and people are shoved aside by the police. This farce is enacted daily to massage the egos of the small men and women who claim the dubious honour of being Pakistan's elite. With such activities going on daily, Bukhari had the gall to accuse the chief justice of demanding "elaborate protocol". Even if he did, in Pakistan there is nothing unusual about that. So why make a fuss about him alone? Clearly Bukhari was working at someone else's behest to set the stage for Justice Chaudhry's dismissal.

Even the repeatedly mutilated constitution does not support Musharraf's action against the chief justice. Article 209 states: If "on information received from the Supreme Judicial Council (SJC) or from any other source, the President is of the opinion that a Judge of the Supreme Court or of a High Court, is incapable of properly performing the duties of his or her office by reason of physical or mental incapacity; or may have been guilty of misconduct, the President shall direct the council to inquire into the matter." The President, in this case General Musharraf, did not wait for the SJC to give its ruling before sending the chief justice home. In fact, the SJC was hastily and improperly constituted after the fact and after Justice Javed Iqbal was hurriedly sworn in as acting chief justice when the second seniormost justice, Rana Bhagwandas, was out of the country. He returned to Pakistan on March 21 and was sworn in as "acting chief justice" even though the chief justice was neither incapacitated nor indisposed to perform his duties according to article 180 of the 1973 constitution. Barrister Syed Ali Naveed Arshad filed a petition before the Rawalpindi bench of the Lahore High Court on March 14 challenging appointment of an acting chief justice.

While resentment against Musharraf's heavy-handedness grows, it also reflects a growing confidence among Pakistanis to challenge the military's authority. Such resentment has been developing for some time, but only in the chief justice have the people found someone they can apparently trust. This political crisis comes at a time when US criticism of Musharraf's policies is also becoming sharper. Hardly a day passes by without some insult being hurled at Pakistan for "not doing enough" to contain the Taliban. What would be "enough" is never specified, but it is clear that the US wants Islamabad to fight its war in Afghanistan by attacking and killing its own people in the border regions. Islamabad tried this for two years, with disastrous consequences; ultimately, the military's inability (rather than common sense) forced it to abandon this policy.

But more worrying for Musharraf is the deliberately leaked news that the US is thinking in terms of replacing him. For years he played on the US's fears that he alone stood as a bulwark against "Islamic extremism" and was indispensable to US designs in the region. An article by Bruce Loudon in the Australian on March 14, based on a New York Times story that quoted US diplomatic and intelligence sources, said that Washington was now toying with the idea of replacing Musharraf with General Ahsan Saleem Hayat, vice-chief of army staff. Muhammadmian Soomro, a former banker and currently chairman of the Senate, was mentioned as a possible future president. Even Benazir Bhutto, in the twilight years of her social and political life, is making the rounds inWashington, pledging her loyalty and begging officials for another chance to rule Pakistan. Her party has been absent from protest rallies against the regime; so much for her democratic pretensions. Whether such a scenario will materialise is debatable, but the fact that US officials are now openly talking about replacing Musharraf must make him one very nervous head of state.

For Musharraf, the timing is not propitious. Pakistan's history of agitation suggests that if a campaign is launched in early spring and sustained for a few months, it usually culminates in the downfall of the ruler. It actually has more to do with the weather; because of Pakistan's soaring summer temperatures, people are reluctant to join street protests in the scorching heat. If the legal profession and opposition political parties can sustain the current momentum for a few more weeks, Musharraf's own colleagues in khaki may force him to quit before there is more damage to the economy and to their interests. The military as an institution is very sensitive about protecting its interests. This is what happened to Ayub Khan, who was toppled from power by his handpicked successor, Yahya Khan, in March 1969. Zulfiqar Ali Bhutto faced a similar fate in 1977 when the Pakistan National Alliance, a nine-party opposition alliance, rejected the results of the elections of April 1977. Three months of street protest led to Bhutto's overthrow by the army; two years later he was executed for murder.

While Musharraf need not fear such a fate, his grip on power has certainly weakened. Because of Pakistan's fragile political system, there is no agreed mechanism for a ruler to exit gracefully. Unfortunately those in power do not relinquish control voluntarily. They consider themselves indispensable, only to discover that Pakistan's political graveyard is full of such people. Another constant feature of Pakistan's political scene is that aspirants to high office must appease Uncle Sam before they can assume power or retain their grip on it. This is typical of the plight of those who do not have the support of their own people. Pakistan is not unique in this respect, but its situation is even more precarious because of its fragile economy and powerful enemies on its borders. Because of a plethora of politicians who are willing to sell their souls to gain America's favour, Pakistan will remain hostage to opportunistic politics unless a political dispensation emerges that has the support of its populace.

For that to happen, there must first be an Islamic Revolution in Pakistan that demolishes the present order. Unfortunately, this outcome seems unlikely at present.

Article from

Crescent International Vol. 36, No. 2

Rabi' al-Awwal 13, 14282007-04-01

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