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Blaming it on the judiciary in Pakistan

As Pakistan lurches towards the third week of Emergency rule, President Pervez Musharraf has left no one in doubt that the main reason for his decision to take the drastic step of imposing it and promulgating a provisional constitutional order was to achieve what he was unable to do on March 9: sack Chief Justice Iftikhar Chaudhry. Plain and simple, it was a coup against the judiciary.

At his three public appearances since November 3 to defend the imposition of the Emergency — an address to the nation on the night, before diplomats at a specially convened meeting, and at a press conference — Gen. Musharraf pointed to the judiciary as the main reason for his decision. Even the other reason he gave, the rise in terrorism and extremist activities, he traced to the judiciary. Not the entire judiciary, as he put it, but a few individual judges who were bent on creating a clash with the other pillars of the state, their actions leading to a paralysis of governance.

Gen. Musharraf blames the judiciary for leaving “law-enforcers shattered, encouraging terrorists and [leaving] those fighting against terrorism demoralised.” He has repeatedly mentioned the court’s order to free 61 terror suspects apprehended from the capital’s Lal Masjid during the army operation inside the mosque in summer and held without being charged for any offence.

It is another story that the two judges who initiated the suo motu notice of the army operation in Lal Masjid were both known regime loyalists — Chief Justice Chaudhry was still fighting to be reinstated — and were among the first five to take oath under the provisional constitutional order. But in Gen. Musharraf’s reckoning, the Supreme Court, charged by the reinstatement of the Chief Justice in July, was behaving like a mad elephant about to wreck his plans for the smooth democratisation of Pakistan by suspending the victory he secured from the legislatures in the presidential election and interfering in the work of “the executive branch,” thus turning the country into a “non-functioning” state. The imposition of Emergency, he claimed, helped put this process back on the rails, as did his decision to hold elections on schedule in the first week of January. “The choice was to act or not to act. If I acted, I had to correct the source of the problem,” he said. “Some elements of the judiciary,” according to him, were the source of the problem.

Coups usually result in changes in what Gen. Musharraf picturesquely calls the “executive branch” — President or Prime Minister and the Cabinet — but this coup was unique. It toppled only the judiciary, and made short work of its supporters in the legal fraternity and civil society. The judges who did not take oath under the provisional constitutional order are under house arrest, and President Musharraf has made it clear that their reinstatement is out of the question.

Supreme Court Bar Association leaders who shaped the agitation for the reinstatement of the Chief Justice are also in jail as are over 2,000 others. The chairperson of the independent Human Rights Commission of Pakistan, Asma Jahangir, is under house arrest.

So, did the judges ask for it? That question goes to the heart of the political crisis in Pakistan.

Since March, and especially after the reinstatement of Chief Justice Chaudhry on July 20, as the Supreme Court charted its own course, for the first time in Pakistan’s history without any contact between the government and the country’s top most judge, the political debate in Pakistan has been divided between transitionists and transformationists.

The transitionists wanted compromise with Gen. Musharraf and the military as the best way forward towards a civilian democracy, while the transformationists wanted a radical confrontation with the regime and the military for a democratic revolution.

For the transitionists, confrontation would plunge Pakistan into a bottomless abyss of militancy and extremism as Islamist radicals rush into the turmoil and occupy all the political space. They applauded Benazir Bhutto for her political acumen in doing a deal with Gen. Musharraf. Indeed, one sentence that came up unerringly in conversation with transitionists as the Supreme Court issued one anti-government order after the other was: “The judges are asking for it.”

The transformationists, on the other hand, argued that the whole point of the last eight months was confrontation, because that was the only way Pakistan could be jolted out of a 60-year-old failure at building a democratic nation. “We have been transitioning to democracy forever. It’s now or never,” they said, dismissing the transitionists as stooges of the military.

They saw President Musharraf focussing only on one thing since March — how to continue in power, and in this, the removal of the Chief Justice was a must. Blaming the judiciary was to accept that his desire to stay on in power, come what may, was the right thing for Pakistan.

For both sides, the role of the Supreme Court was the decisive factor in how it would all unfold. The transitionists counselled the judges against a “reckless” course while the transformationists egged them on into a confrontation with the government.

In an essay in Time magazine this week, Mohsin Hamid, the author of the acclaimed Reluctant Fundamentalist, articulates the transitionists’ frustration with the judiciary, calling the Emergency “a failure to compromise” among rival forces in Pakistan, including President Musharraf, the judiciary, the media and the political opposition.

Even President Musharraf’s harshest critics concede that post-March 9, some of the actions of the judiciary, especially as the Chief Justice acquired the status of a national hero following his removal and his refusal to budge, appeared more in tune with the mood on the street than the “merits of the case.” Some would even say that the full Court’s order reinstating the Chief Justice was given under the pressure of a muscular country-wide agitation by lawyers.

Aside from President Musharraf’s complaint that the court released many terror suspects in the Lal Masjid case, some of the other orders in the case were also surprising, such as the direction to the government to reopen the mosque at the earliest and rebuild the Jamia Hafsa women’s seminary at the same spot next to the mosque. The original was an illegal structure. Its slated demolition by the capital administration was one of the reasons that the Lal Masjid controversy suddenly blew up last January.

Earlier, only the Chief Justice had a reputation for springing the government with unfavourable orders and judgments. But when the lawyers’ agitation grew, other judges seemed eager to share in some of the glory that came with defying the government. The suo motu cases that the Supreme Court took up grew and grew. One was about traffic congestion in Karachi. The Chief Justice even took suo motu notice of the slow progress in the investigations into the Karachi bomb attacks on Benazir Bhutto’s procession.

Speaking to The Hindu in September, Ms. Jahangir, who is also a well-known lawyer, expressed concern at the suo motu powers of the Supreme Court. But she, like many others, saw it as part of the teething process of a judiciary that was discovering itself. She urged instead a look “at the other point of view.”

Ms. Jahangir pointed to the hope that the Supreme Court, in its new avatar, was bringing in the lives of ordinary people. President Musharraf was right in saying that the Chief Justice humiliated senior government officials. “You have not done enough,” he said once, ticking off an Interior Ministry official in the missing persons’ case, reacting indignantly to his suggestion that the case be closed. “Who are you to tell us to dispose of the case? It’s a question of our authority. Tomorrow you will ask for closing the doors of the Supreme Court itself,” he said to the chastised-looking official. But it was music to the ears of the families of those who had been knocking in vain on various doors in Islamabad’s corridors of power, in their search for their loved ones.

Ms. Jahangir also talked about the sheer numbers of poor people who were coming to her office in Lahore after the reinstatement of the Chief Justice asking her to take their case straight to the Supreme Court, and their disappointment at being told that they could not approach the highest court directly. “Expectations have risen, and there is an absence of other mechanisms. We don’t have an ombudsman, we don’t have a national human rights commission, we don’t have a bureaucratic machinery that runs across the country anymore, like the commissioner, deputy commissioner. So people are very desperate to go somewhere, and it [the Supreme Court] is the only place they can think of,” she said at the time.

Given the circumstances, it was inevitable that the Supreme Court would carry the can for whatever happened. Had the judges kow-towed to Gen. Musharraf, they would have been blamed for keeping intact the tradition of succumbing to the military and the doctrine of necessity, just as they have been blamed for bringing on the Emergency. By sacking them, President Musharraf has won a battle that he began way back in spring. The question continues to haunt Pakistan: is the judiciary the problem as Gen. Musharraf and the transitionists claim, or is it he as the transformationists would have it?

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