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In Pakistan, waiting for a political tsunami

Nirupama Subramanian

Will the ouster of Pakistan's Chief Justice set off a tidal wave of popular protest that will engulf the Musharraf regime in the months before parliamentary and presidential elections?

THE REMOVAL of Pakistan's Chief Justice Iftikhar Muhammed Chaudhary by means of a presidential reference to the Supreme Judicial Council has created an unprecedented situation whose implications the country is still struggling to grasp fully. There is no constitutional provision for the removal of a judge before the Supreme Judicial Council, the judiciary's oversight panel, has decided his fate. The Constitution does not provide for the "suspension" of a judge. Yet, by restraining him and making him "non functional," President Pervez Musharraf has virtually pronounced Mr. Chaudhary guilty of the charges against him, said to include "misconduct" and "misuse of his powers." He is under house arrest in all but name. Only a handful of people have gained access to him since his removal last Friday. His telephones, television, and newspapers have been cut off.

The action has shaken Pakistan. It has led to turmoil within the legal community with lawyers coming out on the streets against the ouster, and political parties and civil society groups joining the agitation. To outsiders the uproar may be bewildering. After all, the country is ruled by a military dispensation that enforces its writ where and when it wants. In such a situation, the judiciary can only be subservient to the executive. What is this attack on the "independence of the judiciary" that the protestors are screaming about? After all, the Supreme Court validated the 1999 coup by invoking the "doctrine of necessity." The endorsement came after the judges took fresh oaths under the Provisional Constitution Order, promulgated after General Musharraf seized power. Some judges, including the then Chief Justice, refused to take the new oath and had to quit. It was clearly a move to purge the higher judiciary before the court heard the legal challenges against the Musharraf regime.

But it is also true that the Supreme Court of Pakistan has held its own several times in its chequered history. Arguably, even in its endorsement of the Musharraf coup, the Supreme Court did not surrender completely to him, giving him a deadline for holding elections and itself the right to review his emergency powers in the meantime.

It is one of the many ironies of the Musharraf regime that despite its many failings and limitations, the Supreme Court in recent days had begun — or was allowed — to find its own voice, thus redeeming itself in the eyes of many. General Musharraf himself often spoke of the need for an independent judiciary, and consciously built the impression of distance between the executive and the Supreme Court. Some of the recent decisions of the court added to this impression.

Chief Justice Chaudhary was never known for outstanding judgments in his long career. But according to observers, since becoming the Chief Justice in June 2005, he was "evolving" in a way that came as close to judicial activism as it gets in Pakistan. On many issues, he was cautious about not embarrassing the government. But in some important cases, he took observers by surprise. Whether it was his reversal of the sale of the state-owned Pakistan Steel Mills citing irregularities by the government, or a ban on kite-flying during the spring festival in Lahore because it was killing too many people, or suo muto taking up cases relating to crimes against women in the name of social practices, he was right up there. With his taking up the petition of the families of the "disappeared" and ordering the government to come up with the missing persons, he also came to be known as "people's judge."

Will his ouster create the political tsunami that the Opposition parties have been hoping for, a tidal wave of popular protest that will engulf the Musharraf regime in the months before parliamentary and presidential elections?

Over the last few months, the Opposition parties have been struggling to present a united front. Gone is the magic of May 2006, when Benazir Bhutto and Nawaz Sharif buried the hatchet to sign a Charter of Democracy, a sweeping plan of action that gave rise to visions of the Opposition doing a Nepal in Pakistan. That euphoria lasted a few weeks, until July to be precise, and evaporated amid talk, that Ms. Bhutto and the Musharraf regime were in the midst of negotiations, which was confirmed at one point by the former herself.

Since then, senior ruling party politicians have made regular declarations that there is nothing to stop General Musharraf from seeking another term from the existing national and provincial assemblies. There has been talk too of postponement of elections. Circumstances for this eventuality include the United States attacking Iran, and a worsening of the internal security situation. The idea of imposing an emergency has also been floated. A federal minister pleaded with the President not to hold elections for another year in order to give the government time to finish ongoing development projects. With such ideas afoot, a climate of high political uncertainty prevails in Pakistan. Yet the Opposition has found itself directionless, and at odds within itself over how to respond to any of these possible situations

In the last few weeks, Ms. Bhutto's Pakistan People's Party, as a constituent of the Alliance for Restoration of Democracy, had to be dragged kicking and screaming into an agreement to attend an "all parties' conference" — meaning all Opposition parties — in London on March 24, called by Mr. Sharif. But "the daughter of the east" herself will not attend the meet, choosing to fly to New Delhi instead the day before for a conference organised by a media house.

It has only spurred rumours about the backdoor talks between her and the Musharraf regime. The reason that the PPP gives for Ms. Bhutto's refusal to attend the London conference, and for its own reluctant participation in it, is that the Muttahida Majlis-e-Amal, the coalition of the religious right, including the Jamaat Islami and the Jamaat-e-Ulema Islami, is to share the platform. One of the conditions on which the PPP says it agreed to attend the London gathering was the finalisation of a resolution prior to the meeting in order to pre-empt the inclusion, especially at the insistence of the religious parties, of anything against its policies. Still, Ms. Bhutto's non-participation will diminish the significance of the event.

But the removal of the Chief Justice has injected a new dynamic in the rather feeble opposition politics. Students and lawyers were always in the vanguard of opposition to Pakistan's strongmen. The students were defanged long ago, when Zia-ul-Haq banned campus unions. The action against the Chief Justice has brought lawyers out on the streets in full force. The Opposition parties have joined in.

No one believes the real reason for removing the Chief Justice was his alleged misconduct or abuse of his powers. Without exception, all Opposition parties have described the ouster as a pre-emptive move by General Musharraf to get rid of an "independent-minded" Chief Justice in this crucial pre-election period, and send out a message to other judges for "judicial restraint" rather than activism. The months before elections could see many legal battles, especially if President Musharraf decides to seek another term from the existing electoral college, as the government has indicated, and if he decides to continue in uniform if elected. Political parties are saying Mr. Chaudhary was removed because the government could no longer depend on him to guard its interests.

The all parties' conference has already announced that the London meeting will take up the issue of the Chief Justice's removal. Many of General Musharraf's opponents and critics believe the removal may be the turning point that the Opposition parties have been waiting for. But will the present protests sustain a long-drawn-out agitation against the regime, force it to hold free and fair elections on time, inclusive of all political parties and leaders, even those who can return to the country only at the risk of arrest? Can the political parties ensure that President Musharraf takes off his uniform if he wants another term, and that he does not seek a fresh term from the existing assemblies?

Pakistan has been at many political turning points before, only to see them turn into nothing. One such was the August 26, 2006, killing of the Baloch leader Nawab Akbar Khan Bugti. After a few weeks of protests, the Opposition efforts fizzled out. Pro-democracy Pakistanis say this time is different. But much will depend on how the Chief Justice deals with his troubles. Should he decide to dig his heels in and stay on for a fight against the government in the Supreme Judicial Council, he would provide the Opposition with a powerful rallying point. But the situation would be entirely different should he decide to throw in the towel and go home quietly, which is what the regime would like him to do.

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