Justice in battle

By refusing to resign, Chief Justice Iftikhar Chaudhary triggers an unprecedented crisis for the Musharraf regime.

NIRUPAMA SUBRAMANIAN in Karachi

IN 2004, when Pakistan President Pervez Musharraf sacked Prime Minister Mir Zafrullah Jamali and asked the country's top nuclear scientist Abdul Qadeer Khan to resign, they accepted their fate and went quietly. For Musharraf, it would have been ideal if Iftikhar Chaudhary had done the same. However, Pakistan's Chief Justice proved to be made of stronger stuff. His decision to stay on and fight his ouster triggered an unprecedented crisis for the Musharraf regime. Lawyers came out on the streets and political parties joined his protest. The intensity of the country-wide agitation took the Musharraf regime by surprise. But its response to the crisis only aggravated matters. In crises, leaders, especially authoritarian ones, tend to smell conspiracies, and Musharraf declared that "certain elements" were trying to "lower my image" in the eyes of the world. But with the protests refusing to die down even after 10 days, Musharraf pressed conciliatory buttons and admitted that the government had "mishandled" the crisis.

It all began on March 9 when Musharraf summoned Chaudhary to his "camp office" at Army House in Rawalpindi. There, according to reports, efforts were made for over five hours - some newspapers described it as "detention" - to persuade the Chief Justice to resign. When he refused to oblige, the President filed a reference against the country's senior-most judge in the Supreme Judicial Council and a presidential notification informed the nation that for this reason he would be "unable to perform his functions as Chief Justice".

Justice Javed Iqbal, the second senior-most judge of the Supreme Court, was immediately sworn in as Acting Chief Justice. The government said the senior-most judge, Justice Rana Bhagwandas, the only Hindu in the higher judiciary, could not be sworn in as he was out of the country on holiday. He was reported to be on a pilgrimage in India. As speculation grew about why he could not have been recalled considering that crucial issues of state were at stake, the government finally issued a statement that Justice Bhagwandas would be sworn in as Chief Justice the moment he returned to the country.

The charges against Chaudhary are not in the public domain. But the government said Musharraf had received "numerous complaints and serious allegations of misconduct, misuse of authority and actions prejudicial to the dignity of office of the Chief Justice of Pakistan". The President asked him for an explanation during their meeting at Army House, but Chaudhary was not able to give "satisfactory" replies. Photographs and footage circulated by the government showed Musharraf in his military khakis talking to Chaudhary.

The anger the whole episode provoked was as unexpected as it was intense. Pakistan's judiciary has at best had a "chequered" history. Senior judges have acted as handmaidens of the country's strong-armed rulers. Those who did not toe the line were forced to quit. During Nawaz Sharif's tenure, ruling party activists attacked the Supreme Court and forced Chief Justice Sajjad Ali Shah to flee the premises and hand in his resignation. Other methods of removal have also been used. Months after Musharraf seized power from Sharif, all judges were required to take a fresh oath swearing loyalty to the "provisional constitutional order" introduced after the coup. Those who refused, including the Chief Justice, had to resign. In doing this, Musharraf was only following the steps adopted by his military predecessor, Zia-ul-Haq, to purge the judiciary of opposition.Chaudhary, not yet the Chief Justice, was among the judges who took the fresh oath. The "cleansed" Supreme Court then endorsed the Musharraf coup, invoking the infamous "doctrine of necessity". Despite these low standards, Musharraf's summary treatment of the Chief Justice shocked Pakistan.

This is the first time that a chief justice of Pakistan has had a reference against him in the Supreme Judicial Council. There is no provision in the Constitution for the summary removal of a judge or for the "suspension" of a judge before an inquiry by the Supreme Judicial Council, a five-judge panel that oversees the work of the judiciary. A judge can be removed only on the recommendation of this panel. Declaring the Chief Justice "non-functional" was clearly a violation of the Constitution. Later, Law Minister Wasi Zafar said he had been sent on "compulsory leave", which was provided for under a 1970 order.

It was not simply the constitutional gymnastics that fuelled the agitation. Pakistan has suffered quietly several transgressions of the country's basic law since 2002. However, since his appointment to the highest office in June 2005, Chaudhary was seen to be making some efforts to restore the "independence" of the judiciary. One of his main achievements was clearing the backlog of cases with the Supreme Court. Never particularly known for any outstanding judgments in his career, he took everyone by surprise when in 2006 he ruled against the government's sale of the public sector Pakistan Steel Mills, quoting irregularities.

But by far the most important role he played was in taking up the case of Pakistan's "disappeared" people - those who were picked up by intelligence agencies from the beginning of the "war on terror" for their suspected links with Al Qaeda. Through orders delivered in an open court, he forced the security agencies to produce several people whose families had appealed in vain to the government before. Many of the "disappeared" people, who were reunited with their families in December 2006 thanks to Chaudhary, spoke of being held without charge by intelligence agencies in secret locations. The case, originally based on a petition by 40 families, is still before the Supreme Court. With about 400 people said to be missing, more and more distraught families had begun knocking at the Chief Justice's door.

Against this background, the charges against Chaudhary became irrelevant to the drama being played out on the streets of Pakistan. Commentators said that even if the accusations against him were correct, there were others occupying high office who were guilty of far worse and that in any case, corruption did not appear to be among his alleged misdemeanours. Speculation was rife that Chaudhary was felled for an entirely different reason.

This is election year in Pakistan and political uncertainty prevails over Musharraf's plans. Many ruling party leaders have said that the President will seek another term from the existing National and Provincial Assemblies. In such an eventuality, the Opposition would certainly mount legal challenges. The Supreme Court was also to decide on the constitutional question of whether Musharraf should retain his uniform while occupying the office of President. With these scenarios in mind, the regime was concerned that Chaudhary, who had gained a reputation for judicial activism and "independence", could no longer be trusted to guard its interests.

Had Chaudhary decided to resign the day after his meeting with the President, or even hours prior to his first appearance before the Supreme Judicial Council, the situation might have turned out differently. But his decision to stay on and challenge his removal was the necessary condition for the agitation to take the turn that it did.

Before his first appearance in front of the Council, Chaudhary made it clear that he was not going to it for "relief", but wanted to ensure there was no ex parte order against him. To the panel, he submitted a list of objections challenging the composition of the Supreme Judicial Council. One of these was that of the five judges sitting, he knew at least three had references pending against them. Moreover, Acting Chief Justice Javed Iqbal, only the second senior-most judge, could not head the Supreme Judicial Council.

The rousing reception given to Chaudhary outside the Supreme Court each time he appeared before the Council was fit for a hero. As the first constitutional functionary to resist Musharraf, he became an iconic figure around whom lawyers, Opposition political parties and Pakistan's larger civil society rallied. Opposition parties, including Benazir Bhutto's Pakistan People's Party (PPP), Nawaz Sharif's Pakistan Muslim League (N), and the rightwing Islamist Muttahida Majlis-e-Amal, have taken up the cause of the Chief Justice. Opposition politicians turned up in strength at various protests to express solidarity with the striking lawyers. Bhutto and Sharif gave as much support as they possibly could from their exile to the agitation.

The government's ham-handed response to the growing agitation only worsened matters. After his meeting with the President, Chaudhary went home a virtual prisoner, escorted by security personnel and barred from going to the Supreme Court. He was placed under de facto house arrest; visitors were barred from going to see him; his children were not allowed to go to school; his telephones were cut; he was denied newspapers; and a forklift truck hauled his official cars out of his home and took them away. Chaudhary was probably aware of the stir he would create when he decided to walk to court, accompanied by his wife and children, for his first appearance before the Special Judicial Council, rather than go in a car the government sent him. But he could not have predicted that by manhandling him and his wife in an effort to prevent them from walking to the court, the police would hand a grand victory to those who were agitating for his cause and embarrass the government.The protests grew after that. A nervous government used teargas, rubber bullets and batons to disperse protesters in Islamabad and protesting lawyers in Lahore. The blood on the streets fed the agitation and painted the government in even worse colours.

Nor did the government cover itself in glory when the police - seen by millions on live television - entered the offices of Geo TV, used rifle butts and batons to break up glass doors and attempted to enter its newsroom on the day that street protests in Islamabad peaked and were being covered live by almost all television stations. The most telling part of this shoddy episode was when Minister of Information Mohammed Ali Durrani rushed to the television station's office as it was happening, but policemen ignored his pleas to stop and went about with what they had set out to do. An abject apology from Musharraf and the assertion that the attack was "sabotage" against "everything my government stands for" have failed to answer questions about who ordered it in the first place.

It is acknowledged by many that Musharraf has done more to open up the media scene in Pakistan than any of his predecessors, including encouraging a boom in private television. So in a sense, it is all thanks to Musharraf that the press has played an important role in the current protests, dropping its inhibitions to go all out against the government and side with Chaudhary . Even a directive from the Supreme Judicial Council that there should be no discussion of the reference has not prevented any television channel or newspaper from saying what it wants.

Opposition parties believe that this is the beginning of the end for Musharraf and that the issues at stake are not only about the judiciary but also about establishing a full-fledged democracy in Pakistan. "Every movement has its own dynamics. One event leads to another and it starts to gain momentum and becomes a snowball," said PPP parliamentarian Raza Rabbani.

Whether the protest against the removal of Chaudhary from the office of Chief Justice can snowball into a demand for the restoration of a full-fledged democracy, in which the resignation of President Musharraf and the creation of an interim government to oversee parliamentary elections are first steps, will depend entirely on the Opposition parties powers and inclination to transform it into something bigger than it is now.

Musharraf may overcome the crisis but the episode will have no sweet endings. He can reinstate Chaudhary only at the risk of the further erosion of his authority. On the other hand, Chaudhary's removal by the Supreme Judicial Council will erode his credentials, and that of the judiciary, further.