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Tuesday, November 13, 2007

Musharraf's target is independent judiciary

Pakistan on the brink

This article points out that it is the judiciary that Musharaff is targetting for the most part. Note that it was lawyers who were at the forefront of protests.


Astute observers will recognize that the real target of Musharraf's emergency measures is Pakistan's independent judiciary. He also makes what seems to be a correct observation that western governments have not made demands to re-instate the chief justice. Musharaff probably intended to pre-empt the justice's decision that the election of Musharaff was invalid as long as he was army chief.



>by Mohammed Khan
November 12, 2007


The pretext for the recent declaration of a state of emergency by Pakistani President/General Pervez Musharraf was curbing lawlessness and violence by Islamist militants.

Astute observers, however, will recognize that the real target of Musharraf's emergency measures is Pakistan's independent judiciary.

It is heartening that Western governments have at least mildly rebuked the General and called on him to hasten the return to democracy, and relinquish his role as Army Chief. Yet at the end of the day, no Western government is explicitly calling for the reinstatement of the sacked judges of the Pakistani Supreme Court, including the Chief Justice Iftikhar Muhammad Chaudhry, who remain under house arrest. It is only the lawyers and judges of Pakistan that have forcefully put forward this demand.

It is important to examine why this is the case. Who benefits from this arrangement? Why should we care? To be sure, Pakistan's independent minded judiciary, with its increasingly brazen Chief Justice, has been a thorn in the government's side.

Let's take a moment to chronicle their alleged misdemeanours.

Strike 1: Standing up for public accountability. In 2007, the Supreme Court ruled against the government in the case of the controversial sale of the state-owned Pakistan Steel Mills to a business group with links to the current Prime Minister Shaukat Aziz.

Indeed, it is common knowledge that Pakistani politicians have and continue to use their positions in a questionable manner when it comes to the privatization of state enterprises and in the public procurement process. By contrast, Pakistan's judiciary in recent years has served as the main institutional bulwark against rampant corruption amongst public officials. The generally weak public oversight is part of the reason why Transparency International has consistently listed Pakistan high on its Global Corruption Index.

Incidentally, many suspect that former Prime Minister Benazir Bhutto and her husband, Asif Zardari, also made hefty commissions off government contracts and tenders during their terms in office. Mr. Zardari's is more commonly known in Pakistan as "Mr. Ten Percent," a reference to the 10% commission he is alleged to have extorted from various businesses during his time in the Pakistan People's Party government.

Court cases initiated by the Pakistani government against Mr. Zardari are still pending in the United Kingdom. Criminal investigations are ongoing in Poland, France and the Middle East. But a conviction has already been rendered against the couple on money laundering charges in Switzerland. Were it not for the amnesty granted her by Musharraf as part of the power-sharing deal brokered by the Anglo-American alliance, Ms. Bhutto would herself be before the Pakistani courts facing corruption charges. Given that a legal challenge of this grant of amnesty was forthcoming, it is no wonder that Ms. Bhutto has been conspicuously silent on the question of reinstating the fired judges. If re-elected, Ms. Bhutto stands to once again benefit handsomely from the weak public oversight that comes with a compliant judiciary.

Strike 2: Standing up for the principle of habeas corpus. Since his reinstatement in July, Justice Chaudhry has called on the Director-General of Pakistan’s Federal Investigation Agency, Tariq Pervez, to produce before the court ghost detainee Hafiz Abdul Basit. When Mr. Pervez alleged that Mr. Basit went off to fight jihad in Afghanistan, Justice Chaudhry threatened to throw him in jail if the detainee was not produced immediately.

Needless to say, this exercise was embarrassing for the government. No wonder Musharraf told foreign ambassadors following the declaration of emergency that he had no choice but to take decisive steps against a court system that limited his powers and "paralyzed various organs of the state and created impediments in the fight against terrorism."

Yet balancing the competing interests of security and human rights is precisely the role of the courts, especially when law enforcement and intelligence agencies run afoul of constitutional protections.

Strike 3: Standing up for the separation of powers. The straw that broke the camel's back was the Supreme Court's review of the legality of President Musharraf's recent re-election while still holding onto his uniform as head of Pakistan's Armed Forces. Many insiders suspected that the outcome of this review was going to be unfavourable for Musharraf, hence the timing of the emergency declaration and the unwarranted charge of judicial activism.

Justice Chaudhry's more recent call on the Pakistani lawyers and judges to oppose the police and defy the declaration of emergency rule might be characterized as overstepping the bounds of judicial restraint. But, given the circumstances, he may be forgiven.

The reality is that Musharraf is unwilling to relinquish power. And if this means orchestrating an emergency in order to re-stack the judiciary in his favour, so be it. To hell with lofty concepts such as the rule of law!

Now just imagine if Prime Minister Harper had demanded that the judges of our Supreme Court take an oath of allegiance to him as a condition of their appointment, as President Musharraf has just done with the remaining four Pakistani Supreme Court justices, after dismissing the seven non-compliant ones. We would be up in arms, and rightly so.

In the end, it is a virtual certainty that the new hand picked Supreme Court bench will rubber stamp Musharraf's recent re-election. The General has indicated that once his re-election is confirmed, he intends to remove his uniform.

In times like these, one doesn't know whether to laugh or cry. What we can say with confidence is that in the absence of an independent judiciary to hear cases of illegal interference with the election process, the credibility of the February elections will be questionable. That is assuming the elections are not postponed under yet another fabricated pretext.

Mohammed Khan has a M.A. in History & South Asian Studies, and is currently a LL.B. Candidate at Osgoode Hall Law School

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