Domestic and international implications of Pakistan’s CJ crisis

Developing Just Leadership

Perwez Shafi

Rabi' al-Awwal 13, 1428 2007-04-01

Special Reports

by Perwez Shafi (Special Reports, Crescent International Vol. 36, No. 2, Rabi' al-Awwal, 1428)

In a dramatic move President General Pervez Musharraf abruptly dismissed Justice Iftikhar Mohammad Chaudhry (pic, right), the Chief Justice of Pakistan, last month, provoking countrywide protests by lawyers, the media and political opposition, who all fought running battles with baton-wielding police. The general’s assault on the judiciary is not only an attempt to suppress budding judicial activism but also casts a long shadow on the impending general elections. It may also have international consequences.

On March 9 General Musharraf, the president and army chief, had a meeting with Chief Justice Iftikhar Chaudhry in the Army House in Rawalpindi, a few kilometres from Islamabad, the capital. Musharraf and Shaukat Aziz, his handpicked prime minister, presented a list of unspecified charges to the chief justice and told him he was being made “non-functional” while the allegations against him are investigated. Hoping to remove him permanently, the president sent a reference under Article 209 of the constitution to the Supreme Judicial Council – a dormant accountability arm of the judiciary, which has rarely been used in the last 30 years – to investigate allegations of “misconduct and misuse of authority.” Then the general appointed Justice Javed Iqbal, the seniormost judge available, as “acting” chief justice. Apart from filing a reference, all other actions of the president are unconstitutional and not permitted under Article 209.

The “non-functional” or “suspended” chief justice was then left alone in the Army House for several hours to mull over the choice offered him: if he resigned voluntarily, he would be “looked after”; if he refused he would be “dealt with”. Despite these threats, the chief justice held his ground. When he was finally allowed to leave and he tried to get to his office in the Supreme Court building, the police blocked his car and forcibly took him to his residence, placed him under virtual house arrest, and left him incommunicado for several days.

The president’s moves took the country by storm and protests erupted all over the country. Lawyers and bar associations staged daily protests in almost every city of the country; some judges have resigned in protest. The media have had a field day, launching scathing attacks in talkshows and exposing the government’s unconstitutional actions. By contrast the opposition political parties, so far demoralised and disunited, have found a cause to rally people round against the dictatorial rule of Musharraf, hoping to jump-start a movement to topple him from which they might themselves benefit.

The first session of the Supreme Judicial Council was held on March 13. But the drama intensified when the “non-functional” or “suspended” Chief Justice Chaudhry refused to ride in the official car and attempted to walk the one-kilometre distance to the Supreme Court. Accompanied by his wife and daughters, he was roughed up by police and manhandled into an official car; the entire incident was broadcast live by several private television stations. The legal fraternity was furious and fought running battles with baton-wielding police, in which many lawyers were injured.

After the second hearing of the Council on March 16, Qazi Hussain Ahmed, leader of the Islamic alliance Muttahida Majlis-e Amal (MMA), called upon the army to support the protest. “We call on the army and other institutions -- this movement is for the survival of these institutions,” Qazi told reporters before he and about a dozen supporters were led away by police firing tear-gas. Police later raided the nearby office of private Geo television, breaking windows, scuffling with staff and demanding the removal of a rooftop camera that was filming the disturbances. In this frenzy the media became part of the story, as the authorities banned any discussion on TV talkshows of the proceedings of the Council.

While the Council continues closed-door hearings every few days, television stations, thriving on the crisis, have increased their audiences. The legal fraternity are fighting running battles with the police while flooding the courts with writs challenging the constitutionality of Musharraf’s moves. The mystery of the whereabouts of Rana Baghwandas (who is a Hindu), the next most senior judge of the Supreme Court, ended when he finally flew back from India, where he had gone for a pilgrimage, on March 21.

The desperate opposition parties made a cause célèbre of the Chief Justice’s “suspension”, while the supposedly secular Pakistan Peoples Party (PPP) of Benazir Bhutto and Muttahida Qaumi Movement (MQM) were mysteriously silent for several days. The MQM is part of General Musharraf’s military government; the PPP is secretly negotiating to cut a deal and form its own government under Musharraf after the next elections, which are scheduled to take place in the autumn.

In the midst of all this fuss, Richard Boucher, the US assistant secretary of state, arrived in Islamabad on March 14 after a visit toKabul. The US state department said that Boucher’s visit was not linked to the “current situation” in Pakistan.

Why has Musharraf removed the Chief Justice?

Three views have emerged. Some believe it is a smokescreen designed to create turmoil that is manageable by Musharraf, in order to divert attention from real and serious problems. This sort of tactic is practised all too often by governments. Creating a crisis to divert attention was the goal, but there now seems to be much more than that to the situation.

For the legal fraternity the issue is one of a challenge to the independence of the judiciary and to the rule of law. They are furious about the way the country’s top justice has been removed. Among them is Munir A. Malik, the president of the Supreme Court Bar Association, who has described it as a “blatant attack on the independence of the judiciary”. Justice Saeeduzzaman Siddiqui, a former chief, has also condemned the government’s action. The lawyers want to revert to the old status quo.

Since independence in 1947 the judiciary, like every other pillar of state in Pakistan, has been subservient to the military. The Supreme Court has repeatedly validated the overthrow of elected governments by the military to impose martial law under the excuse of “necessity”, sometimes abrogating the constitution and other times putting it on hold and later mutilating it beyond recognition. As well as its subservience, corruption within the judiciary has greatly disappointed the people.

For the first time, Justice Iftikhar Chaudhry, appointed as Chief Justice in June 2005, forced the government in a number of judgements to follow its own rules, and put checks on the arbitrary and authoritarian behaviour of government functionaries. For instance, a nine-judge bench headed by him stunned the government in August last year by scrapping the privatisation of the Pakistan Steel Mills -- the first biggest steel plant -- that it said was sold to foreign buyers in “indecent haste”, at a throw-away price and in violation of privatization rules, giving the opposition parties a lot of ammunition to bring a no-confidence motion in a failed move against prime minister Shaukat Aziz. Both Washington and the World Bank were upset at the privatization setback.

The Chief Justice took suo moto action on “missing persons” against the intelligence agencies, giving hope to families when he demanded that these agencies explain under what law they were operating and “disappearing” people. He demanded that they account for all the “missing persons”. His summoning and questioning officials of the security agencies and the government greatly irked them. Ms Masood Janjua, in charge of the women’s wing of the Defence of Human Rights, said, “His commitment to provide justice to the missing people has perhaps upset the government.” In addition, he personally took up public complaints about issues ranging from gang-rape victims to kite-flying and expensive wedding meals.

However, in pursuing public-interest cases, Justice Chaudhry’s modest goal seems only to have been to restore the judiciary’s credibility, and not to upset the status quo seriously. For instance, on the Federal Government’s appeal he struck down the Hasba Bill passed by the Islamic alliance that rules the North-West Frontier Province, which contained some Islamic provisions. He did this despite the fact that the Hasba Bill had already been amended according to the recommendations of the Supreme Court.

Immediate reason for the Chief Justice’s removal

If the government was irked by Justice Chaudhry’s judicial activism on a number of occasions, it was more concerned about how he might react to Musharraf’s election as president by the present assemblies, rather than by the new assemblies elected in the next general election. At the heart of the problem is that General Musharraf would like to continue as “elected” president, but the constitution does not allow it. He managed to do so in 2002 through political gimmicks and a compliant judiciary. This time the demand that he give up one post or the other is getting more insistent. He publicly promised to do so but has also said that he reserves the right to change his mind if the “national security” demands it. Not sure of the composition of the new assemblies that will come into existence after the elections, one way to secure the presidency is to get himself elected by the present assemblies just before their term runs out. Once constitutional challenges are mounted he wants the judiciary, especially the Chief Justice, to hand down a verdict that favours him. But Musharraf does not trust Justice Chaudhry to comply; hence the urgent need to replace him with a more cooperative successor.

Flimsy allegations

Taming the judiciary has been a goal of all Pakistan’s governments, whether led by civilians or generals. In the mid-1990s, during the second term of Benazir Bhutto’s civilian government, she appointed a number of persons with criminal records as judges. Similarly, at the behest of prime minister Nawaz Sharif in 1997, his sycophants and goons stormed the Supreme Court while it was in session. The judges barely managed to escape and save their lives by gathering on the top floor of the building. Removing judges and replacing them with more compliant judges is, therefore, usual in Pakistan.

Nor is it a difficult thing to do. The political culture allows and facilitates one to indulge in every vice, corruption and luxury, but at the same time the security agencies also maintain secret files. When an official does not behave as his masters want him to, then “the files” can be used to hold him accountable. There are a number of persons convicted of criminal offences serving as federal ministers in the present government who belonged to political parties, whose compliance is secured by coercion and the threat of exposure using their “files”.

Even if a person has done nothing wrong, flimsy charges can still be concocted and even an angel can be convicted and imprisoned with the help of a subservient judiciary. Such are the charges contained in the presidential reference (made public on March 20) filed in the Supreme Judicial Council against the chief justice, whose status later changed from “non-functional” to “on forced leave”. Of the 36 allegations, 25 deal with exercising undue influence as justice of the Supreme Court on the alleged appointment of his son, Dr Arsalan Iftikhar, first in the medical profession and then in the police force. The rest of the reference deals mainly with allegations of using a fleet of cars contrary to rules, his insistence on protocol, using planes and helicopters to which he was not entitled, and the use of a BMW car by a relative of his. These are trivial instances of malpractice compared to the mega-corruption that is the norm in Pakistan. For instance, the manipulated surge of the Karachi Stock Exchange, followed by its crash last year, wiped out billions of rupees belonging to ordinary people, yet it was whitewashed although investigative reports implicated the prime minister and others, to no avail. Even government buildings have been burned to wipe out the trail of massive corruption -- embezzlements and billions of rupees’ worth of loans written off. The record-rooms of two skyscraper buildings – the National Bank of Pakistan and Pakistan National Shipping Company in Karachi -- burned for hours last year and in February respectively, until their records were totally destroyed. Such massive and blatant crimes are swept under the rug and forgotten with little or no investigation, and no one is charged or held to account. However, a copy of the evidence or report is inserted in the secret “files” to be used later if required. Compared to these enormous crimes the allegations against the chief justice are trivial: they make it clear that he is being removed for reasons other than those stated.

International repercussions

Others believe that the removal of the Chief Justice has an international dimension. These people think that no political change takes place in Pakistan unless Washington approves or gives the green light. They argue that through the Chief Justice crisis the USis exerting pressure on a reluctant Musharraf to “do more” on the “war on terror”. In this crisis the media, especially Geo TV, played an important part and became the story itself when the police attacked its Islamabad office. Geo TV took a lead role against the nuclear scientist Abdul Qadeer Khan; in particular, its talkshow host Kamran Khan ran stories and articles in the foreign press maligning and “exposing” Dr Khan and Pakistan’s nuclear programme using information supplied by the military and security agencies. The station also takes a leading role in promoting western and ‘liberal’ values in its programmes under the guise of “freedom of the press”, including vulgarity in advertisements. It planned and organised a campaign for a change in law that was ostensibly for ‘women’s rights’, which was eventually passed by parliament. The station also offers half-hour direct Voice of America TV broadcasts on news and other information. Musharraf himself has alluded to a conspiracy being hatched against him. Attacking and then apologizing for it is a way of warning Geo TV not to toe the US line too closely.

While the US issued a statement on the crisis in an attempt to placate all parties, it also gently nudged Musharraf into leaving his army post while keeping the presidency. On March 21 Sean McCormack, a state department spokesman, told a briefing in Washington, when asked if it was the US government’s aim that Musharraf leave the army post by the end of 2007 as scheduled: “He has made certain commitments in this regard and we think it’s important that he follow through on those commitments.” Musharraf has publicly vowed to decide the issue but every time he changes his mind. The questioner had said that the dispute over Musharraf’s desire to keep both posts seemed to be the cause of the ongoing crisis. The US spokesman offered no comment on the observation but instead described Musharraf as a “good” and “solid friend” in fighting terrorism. Musharraf has also warned the US not to put so much pressure on him that he is unable to bear it. What he could do to back up this implied threat he did not say.

Yet another interpretation is that Musharraf has taken some independent and bold decisions that have displeased the US, and one way to get him back in line is to rattle him by supporting “democratic forces” in this crisis. An example of a relatively independent decision the general has taken is to grant administration and operation of the newly constructed Gwadar port (between Karachi andBandar Abbas, Iran) to a Singaporean firm in which the Chinese government has minor interest, rather than to a Dubai-based firm under the US’s influence. On energy matters, the general has also stated that Pakistan will definitely like to go ahead with the $7-billion Iran-Pakistan-India (IPI) gas-pipeline project even if India pulls out of it. This goes against the US’s stated preference for the rest of the world to not cooperate with Iran because of its defiance on nuclear matters.

It is also possible to view the current crisis in light of US and European pressure on Pakistan to “do more” in support of US and NATO forces in Afghanistan. This crisis may be meant to divert attention from serious fighting that erupted without warning on March 20 in South Waziristan, where “tribal people”, accused for years by the US and Pakistani governments of supporting and harbouring foreign fighters, abruptly turned on their foreign brothers, killing and injuring hundreds according to government reports. Musharraf’s government has not hidden its satisfaction at the renewed fighting. In fact, it appears that at US insistence Pakistani security forces and agencies have launched a strong attack on foreign fighters, using heavy artillery and helicopters and taking their injured to Combined Military Hospitals. They did it before, when the Taliban movement was formed, organised and equipped with arms in 1994-96, when regular security agencies fought as “local tribesmen” on behalf of the Taliban.

Meanwhile, on the judicial front, Justice Rana Bhagwandas has been sworn in as acting chief justice. Due to his sudden return from “vacation” the Supreme Judicial Council will have to be reconstituted; its hearing of the presidential reference has been deferred until April 3. Although the lawyers vow to continue their protests and marches, the government has also relaxed restrictions on the “suspended” chief justice. “To test the government’s claim that the non-functional chief justice is a free man, Justice Chaudhry has accepted the invitation to address the Rawalpindi High Court Bar Association on March 28 and the Peshawar High Court Bar Association on March 30,” announced Supreme Court Bar Association President Munir A. Malik on March 21. Only time will tell what will happen then.

However, no one, not even Islamic political parties and their leaders, analyses the current crisis from an Islamic-movement perspective, nor suggests what key concepts are crucial to understanding it, nor understands and explains how Pakistani society has reached such a state that all solutions to problems are sought only through western perspectives. It is important to analyse the problem of domestic illegitimacy and its connection with international imperialism. It is also necessary to specify the responsibilities and goals of the Islamic movement, and how to achieve them. All this needs to be analysed and discussed in great depth and detail if the Islamic movement in Pakistan is to break through its stagnation and set out on a path towards significant achievements.

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