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Justice on trial in Pakistan

Nirupama Subramanian

— PHOTO: AFP

Pakistani lawyers and activists of opposition parties hold torch lights as they march toward the Supreme Court during an anti-Musharraf protest rally in Islamabad on May 26.

The marble and granite building of the Supreme Court of Pakistan, positioned between the overstated Prime Minister’s office and the nondescript Parliament buildings, is the centre of attention for much more than its imaginative structure. For the last six weeks, 13 of its judges — deemed as constituting a full court — have assembled daily in Court No. 1 to hear Iftikhar Chaudhary vs. President of Pakistan. The petition by the ousted Chi ef Justice accuses President Pervez Musharraf of mala fide in framing charges of misconduct against him, challenges the allegations, and raises questions about the competence, composition, and constitution of a panel called the Supreme Judicial Council to which the charges were referred on March 9.

Mr. Chaudhary won an early victory when the Supreme Court stayed the SJC from hearing the reference until it had dealt with the Chief Justice’s petition. More recently, the full court as good as rejected the Government’s contention that it should not hear the petition when it asked the Chief Justice’s lawyers to begin arguments on the merits of the case, postponing a decision on the maintainability of the petition to the end.

The complex legal battle is not as noisy as the lawyers’ agitation, nor does it have the drama of Chief Justice Chaudhary’s weekend road shows to various parts of the country, which continue to attract tens of thousands each time. But the judgment is expected to become the decisive marker of nothing less than the independence of Pakistan’s higher judiciary. By extension, it is an important piece of the political jigsaw that is Pakistan today. It may well determine President Musharraf’s most important decisions in the coming days, including the lightning-rod issues of his re-election, and his dual offices, on both of which the Supreme Court may be called upon to speak its mind.

No one is more aware of the heft of the case, and its implications, than the judges themselves. “It is not the Chief Justice but all of us [the 13 judges] who are on trial,” observed Justice Khalil-ur-Rehman Ramday, who heads the bench.

According to observers, the Chief Justice’s petition goes to the heart of the problems besetting Pakistan today. According to Wajiuddin Ahmed, a former Chief Justice of the Sindh High Court, it reflects the scant regard of the executive for the judiciary, its attitude towards separation of powers, the rule of law, and the supremacy of the Constitution.

“If the [full court] restores the Chief Justice, it would be a salutary step in the direction of an independent judiciary. If that comes about, it is a bitter pill that those in power have to swallow. A bitter pill because they are not used to dealing with an independent judiciary. They will need to make changes in order to be able to live with it, and they will have to live with it,” said Mr. Ahmed.

“Suppose at the end of the day [the court] sacrifices its Chief Justice, I think it will have decreed its own subjugation, which is an option still before it,” said Mr. Chaudhary’s lawyer Aitzaz Ahsan.

Among the questions before the court is whether a reference against the Chief Justice can be heard by the Supreme Judicial Council, or whether it can be heard only by a full court. The lawyers for Mr. Chaudhary have also argued mala fide on the President’s part. They have contested the validity of the reference, on the ground that it was formulated without due process, on information provided by intelligence agencies, and not on sound evidence. It is also their case that the President’s attempt to force a resignation from him while the reference is pending, and sending him on “forced leave” under a “dead” 1970 presidential order when he refused to comply, is ultra vires.

Time and again in Pakistan’s history, the Supreme Court has sided with rulers by invoking the notorious “doctrine of necessity.” But this time the pressure on the judges is coming from both sides. On the one hand, is an agitation spearheaded by lawyers that has politically weakened President Musharraf. It demands the quashing of the reference, the reinstatement of the Chief Justice, but it also appears to have a broader agenda, summed up by the Supreme Court Bar Association president Muneer A. Malik in a recent article in the Dawn, as “changing the mindsets of people ... who have been inoculated against the concept of true justice.”

On the other side, is a government that operates by reflex through its “establishment,” Pakistan code for a nebulous set of people associated with the military, the intelligence agencies, and assorted members of the civilian bureaucracy. An indication of the importance of the “establishment” in the entire imbroglio came when earlier this month, three persons filed affidavits in support of the government, countering the Chief Justice’s affidavit which gave his version of the events of March 9. The three were President Musharraf’s chief of staff, the director-general of Military Intelligence, and the director-general of the Intelligence Bureau.

At times, the full court has given the impression of a burgeoning spirit of independence. On Monday, it ordered the intelligence agencies to keep out of the courts, and asked for the courts and the judges’ chambers and homes to be swept clean of bugs and other spying devices. The angry order followed the discovery that some of the government’s evidence for the reference against the Chief Justice contained unsigned, unsourced allegations against senior members of the judiciary, and included photographs taken inside Mr. Chaudhary’s home. Dismissing the material as “scandalous” and intended to malign the judiciary, the court issued summons to the Secretary of the Law Ministry for explanation.

At the same time, said Mr. Ahsan, there is “intense pressure” on the bench from the intelligence agencies. “Do not as yet count out the pressure from the military establishment,” he said.

The difference this time is that the bench is under unprecedented scrutiny and the government faces the danger of being found out.

There appears to be a realisation in the government that it may not be on legally strong ground, and it has shown signs of back-pedalling. Last week, the government told the court it had no objection to the reference being heard by the Supreme Court instead of the SJC. Even in this apparent u-turn, Mr. Chaudhary’s lawyers sensed a trap as agreeing to this would be an implicit acceptance of the validity of the reference.

But there is not much longer to wait. The petitioner’s side has completed its arguments. The court is now hearing the government’s side. The judgment appears only days away and is being eagerly awaited.

In the four months since the Musharraf regime tried to sack the Chief Justice, it has become clear that political parties are not the agents of change in Pakistan. In any other place, an agitation such as the one for the reinstatement of Mr. Chaudhary would have been a politician’s dream come true, a tailor-made opportunity to take on the regime. Not here. Opposition activists have participated in the agitation, but they have not been able to cover up the aloofness of their leaders.

One lawyer affiliated to the Pakistan People’s Party said this was the “most disappointing” aspect of the present agitation. The PPP claims to have the biggest mass base but does not seem able to shake off talk of a deal between its leader Benazir Bhutto and the regime. The Nawaz Sharif-led Pakistan Muslim League (N) believes the task is too huge for it to take up on its own.

Not surprisingly, all eyes are on the Supreme Court to somehow redeem the situation. The irony is that a judgment in favour of the Chief Justice may also be the best solution politically for President Musharraf, as it would leave the agitation with no cause to continue and give him some breathing space.

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