Opinion
Judiciary and Musharraf
Institutional breakdown is one of germane problem which lead to confrontation between judiciary and military. Judicial Activism began in Pakistan when it was captained by Ch. Iftikhar Chaudhary who was appointed as the Chief Justice of Supreme Court of Pakistan. The history of Judiciary in Pakistan has been brittle; this can be ascertained from fact that Doctrine of Necessity came up. This was conceived by the Pakistani Supreme Court which granted a legal imprimatur to the military coup. In the past, the judiciary toyed the line of military regimes, even during the times of Zia-ul Haq, an ordinance was also passed which sought to enforce Islamic Law across the land. When Musharraf came to power in 1999, the judiciary functioned as a subsumed institution for military.
The Conflict between the Judiciary and Musharraf date back to last year, beginning with cases of enforced disappearances that rose alarmingly, since Pakistan became a partner in the US led war on terror. The institutional pillar i.e. Judiciary was assisted by media which has been supportive to this process. In July, 2006, Pakistani journalists working for BBC Urdu launched a ground breaking debate in Islamabad on enforced disappearances. This is when the parochial civil society began to create public awareness and facilitated collective action by the families.
On this issue, the Judiciary started confronting the executive, by hearing petitions filed by the Human Rights Commission of Pakistan seeking information on 150 missing persons. A court proactive stance led to appearance of the missing persons in court bringing into question the police and administration officials. Every time a missing person was produced in the court, accountability and credibility of the officials and the system was pushed and questioned. This led Musharraf to suspend Chief Justice Iftikhar Chaudhary. A real confrontation began between the military and judiciary. This was the first time in the history of Pakistan that the Judiciary had opened its wings and not subsumed to orders of the government of the day.
After suspension of the Chief Justice there followed a four month long protests of the lawyers all over Pakistan. Iftikhar Chaudhary traveled the important cities of Pakistan and was received with rousing welcome by the civil society of Pakistan. Theoretically speaking, the institutional mobilization led to creation of a movement among the civil society groups which began to oppose the military imposed democracy in Pakistan. Standoff continued till July 2007 when Chaudhary was reinstated by a full bench of the Supreme Court.
The chain of events which followed after reinstatement of Chaudhary as Chief Justice, were the petition of Nawaz Sharif on the question of right to return and participate in politics ' which was upheld by the Supreme Court on August 23, 2007 . The confrontation between Musharraf and the Judiciary, went to new high when Nawaz Sharif former Prime Minister was deported back to Saudi Arabia within hours of his arrival in Islamabad on September 10, 2007. The lawyers of Pakistan Muslim League (Nawaz) filed a contempt case with a long list of respondents for violating the court verdict. The hearings soon falsified the government's claims that Sharif had left `voluntarily', bound by his `agreement' with the Musharraf government soon after the military coup of 1999. Sharif's departure from Pakistan came up as a well hatched plan at the highest level.
At the same time, the apex court was reviewing a petition regarding the regarding the National Reconciliation Ordinance (NRO) that President Gen. Musharraf promulgated on Oct. 5, 2007 a day before the presidential elections. The NRO cleared the way for another former twice-elected prime minister, Benazir Bhutto, to return to Pakistan without being arrested for the corruption charges she faced after being ousted from power in 1996.
The schism took a new turn when Pakistan's Supreme Court was to give its ruling on Musharraf election as a military President. The court heard the petitions which challenged Musharraf's right to hold the posts of President and Army Chief, the legality of being elected in uniform, and whether he can get a mandate from outgoing assemblies before the general elections due in mid-January. The verdict was expected to be against Musharraf's re-election as a President in uniform. According to Stratfor, in Pakistan, Musharraf caught wind of the Supreme Court's plans to dislodge him from power, leaving him with no choice but to resort to his last option: declaring an emergency rule and holding onto power through force. In order to assert his authority over judiciary, he imposed emergency on 3 November, 2007. C. J. Chaudhary reacted promptly by convening a seven member bench, which issued an interim order against this action. He also ordered the armed forces of Pakistan not to obey any illegal orders. Subsequently, the 111 Brigade entered the Supreme Court and arrested the Chief Justice and other judges of Supreme Court and arrested them.
Musharraf made the move to impose an emergency for his own political survival rather than the survival of the regime. There was great pressure on Musharraf all quarters of the society, to shed his uniform. His power and legitimacy would have been reduced after becoming a civilian President and subsuming to the Judiciary. No military dictator would accept the command of civilian institution, which would weaken his power. As pointed out by Foucalt 'Power is everywhere...because it comes from everywhere'. One of the bases of power as defined by social psychologists French and Raven (1959) is Legitimate Power which refers to power of an individual which gains importance due to his relative position and duties of the holder of the position within an organization. This theory may be relevant to an organisation but can very well be applied to a nation state also. Legitimate Power is formal authority delegated to the holder of the position. It is usually accompanied by various attributes of power such as in uniforms. In the same way, Musharraf would not wish that his legitimate power be sacrificed to another civilian institution i.e. the Judiciary.
The Judiciary had to bow down after the imposition of emergency in Pakistan. Nearly 60% of the judges had been ousted from office either because they were not invited to take a new oath of office, or because they refused to take oath. The declaration of martial law led to the appointment of the Pro- Musharraf Chief Justice Dogar. The new Supreme Court declared the verdict of the seven judges against the emergency null and void. Aitzaz Ahsan emerged as a strategic thinker behind the movement to support reinstatement of Ch. Iftikar Chaudhary after revocation of the emergency. He revived the lawyer's movements by forging linkages with politicians. Ahsan was placed on house arrest and several thousand of anti Musharraf lawyers were arrested by the Pakistan Rangers.
Musharraf was able to convince the U.S. officials on curtailing the judiciary, statements made by senior U.S. officials calling for end of the emergency rule stressed the need for holding free and fair elections, free media but did not mention anything about autonomy of the judiciary in Pakistan. Musharraf has done much to undermine already denuded institutions of which judiciary was also a part.
Assanisation of Bhutto on December 27 has, unfortunately, overshadowed the lawyer's movement in Pakistan. Confrontation between the judiciary and Musharraf has taken a back seat for moment. The institutional framework which has weakened due to the excessive interference of military reducing autonomy of judiciary leads to the big question: Will the forthcoming elections renew Pakistan's civil institutions?
20-Jan-2007
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Rahul Mukand
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