The judiciary strikes back?

THE judiciary in Pakistan is suddenly in an assertive mode. Or so it appears, particularly in comparison with its track record in 2000 when it endorsed not only the legitimacy of the military takeover but also every action of the Musharraf government.

The Supreme Court's verdict in the second week of April quashing the judgment of a lower court in a corruption case against former Prime Minister Benazir Bhutto and ordering a re-trial has come as a whiff of fresh air for human rights activists and political workers who were feeling stifled.

Of course the apex court is yet to spell out the grounds on which it set aside the lower court's verdict. It is unusual, as nearly two weeks have passed since the three-line order of the court caused political convulsions. But never mind, no one is complaining - though the military government must be anxiously waiting for the detailed judgment.

Before the legal luminaries of the Musharraf government could gather their breath on the Benazir case, the apex court hit out once again at the military regime on the draconian nature of an ordinance meant to deal with corrupt politicians and businesspersons. The Judge's observations on the ordinance were so harsh that the government was forced to consider the necessary amendments.

The same week the apex court posed some embarrassing questions on the amount of money earmarked for and spent in fighting legal cases against Benazir Bhutto. The military government told the court that a whopping Rs.14.2 million has been spent in the form of legal fees paid to lawyers engaged in fighting just two cases against the former Prime Minister. At least one media report talked about the allocation of Rs.100 million by the Musharraf regime for legal proceedings against politicians and industrialists.

The aggressive tone and tenor of the observations of the Supreme Court in recent weeks has come as a bit of a surprise to observers, particularly since the year 2000 began on a less-than-happy note for the judiciary. On January 26, 2000 the Judges were ordered to take a fresh oath under the Provincial Constitutional Order (PCO), promulgated by the military government after the suspension of the 1973 Constitution.

Six of the Judges including the Chief Justice, and 13 Judges of High Courts who refused to toe the line, were removed from office. The 'unfaithful' ones were not even invited to the oath-taking ceremony of the Judges who were prepared to swear allegiance to the military-constitutional order.

It was a re-cast Supreme Court that validated the military coup of October 1999, invoking the good old 'doctrine of necessity'. The apex court was even empowered by the military ruler and Chief Executive, Gen.Pervez Musharraf, to amend the Constitution subject to the condition that its 'basic structure' would not be altered.

No doubt the court admitted a petition challenging curbs imposed by the military government on political activity. But that was almost a year ago and the petition is still pending.

At another level, a Special Court in Karachi pronounced former Prime Minister Nawaz Sharif guilty in the plane hijack case and sentenced him to 21 years in jail and to pay a hefty fine. In another corruption case, a court handed down a similar sentence. It is a different matter that Sharif is now in Saudi Arabia presumably after striking an 'exile deal' with the military regime.

With the recent Supreme Court verdict in the Benazir case, the year 2000 looks so distant. Going by the debate in political and media circles, the judicial turnaround appears to have come with the surfacing of alleged conversations between top functionaries of the Nawaz Sharif government and the Judges who convicted Benazir Bhutto in the corruption case. The bizarre episode has all the trappings of another Tehelka scandal. The only difference is that Tehelka involved videotapes and the Benazir episode purportedly revolves around audiotapes. If the Tehelka tapes represented the handiwork of two intrepid reporters, the Benazir tapes are supposed to be the handiwork of Pakistan's intelligence agencies.

The tapes surfaced in the first week of February when the London based Sunday Telegraph published what were claimed to be excerpts from a conversation between the Judges who pronounced Benazir Bhutto guilty in the corruption case and top functionaries of the Nawaz Sharif government. The newspaper also published a letter written to the President of Pakistan by the sleuth who claimed to be in charge of the operation. It was portrayed as a case of the sleuth suffering from pangs of conscience.

As could be expected, Benazir Bhutto seized the opportunity to move the Supreme Court and seek to treat the tapes as proof that the case against her was 'fixed'. The apex court took note of the plea and directed the military government to certify the veracity of the tapes within 48 hours. But after taking 10 days, the Musharraf government dismissed the tapes as fiction.

It is not known if the Supreme Court has accepted the government's version on the tapes. One would have to wait till the apex court spells out the reasoning behind its verdict quashing the lower court judgment.