Minus one, minus two
By Beena Sarwar
CHIEF Justice Iftikhar Mohammed Choudhry has put up a memorable fight. Starting from his first resolute ‘no’ to President Gen Musharraf, his defiance was the ‘spark that lit a prairie fire’ — as Mian Ijazul Hasan put it in June 2007 while visiting the US as Benazir Bhutto’s spokesman gathering support for her return and for the lawyers’ movement.
His observations shared with some expatriates in Boston remain valid today: “The rallies demonstrating support for the suspended chief justice have been spontaneous,” he said, “People flock on their own in the thousands to see and hear the chief justice, and most remarkably, there has been no violence or damage to public property.” The lawyers’ recently concluded long march also bore all these hallmarks.
Plus, “for the first time the higher judiciary is working with the people rather than with the army or the bureaucracy. And right now there is only one issue in Pakistan — the restoration of the chief justice.” A year later, this observation too remains valid, despite all the changes since then, including the transformative experience of Benazir Bhutto’s assassination. The year that was saw a new hope dawn when the Supreme Court restored the chief justice to office, a decision Musharraf accepted even if reluctantly. Over the next few months, the superior courts were seized of several significant cases with the potential to deeply impact Pakistani politics. Some related directly to restrictions imposed by the military dispensation, like the right of an exiled politician to return and participate in politics, or police brutality on lawyers and journalists.
Moved by the families of the ‘disappeared’, the courts had since the summer of 2006 even begun to engage in a kind of ‘judicial activism’ that was rocking the status quo, shaking up the intelligence agencies and leading to the production of several missing persons in court. However, it is noteworthy that only after the elected government was installed did the courts —headed by the PCO judges — order the release of political prisoners like Safdar Sarki and Akhtar Mengal.
The superior courts were also hearing cases related to the National Reconciliation Ordinance that Musharraf promulgated on the eve of the presidential elections, clearing the way for Benazir Bhutto’s return to Pakistan without being arrested for the corruption charges instituted after she was ousted from power in 1996. The PPP reciprocated by abstaining from the presidential vote, allowing Musharraf to remain in office (heavily backed by Washington).
The ‘deal’ also paved the way for general elections and the subsequent transition to a democratic path that Ms Bhutto had long been arguing for. Whether or not there was substance to the charges, there were political motivations behind them (Ms Bhutto always noted that they were never proved in court).
Perhaps the most significant case before the courts related to petitions against the validity of Musharraf holding the dual offices of president and army chief. After he pledged to quit the army before starting a new presidential term, the court in a short order dismissed these petitions as “not maintainable”, enabling Musharraf to contest the presidential elections while remaining army chief. In its final judgment, the court may well have declared Musharraf’s presidential election invalid — a possibility neither he nor his supporters in Washington were (or are) willing to contemplate.
Before this could happen, the jittery president reneged on his end of the US-brokered ‘deal’, imposing emergency rule on Nov 3, 2007 and sending all those judges packing who refused to take fresh oath of office — an unprecedented two-thirds of them. Most were placed under house arrest. Leaders of the lawyers’ movement were imprisoned, and many suffered solitary confinements and harsh conditions that resulted in severe illnesses to some of them, such as Munir A. Malik and Justice (retd) Tariq Mahmood. Many, including the chief justice, were released only after the new government took oath.
Whatever good Musharraf did (like the revival of women’s seats and joint electorates) now pales before his short-sighted and downright dangerous refusal to face his obvious unpopularity and illegitimacy (which even those who are working with him concede) and step down.
The peaceful lawyers’ movement over the past year was instrumental in convincing Washington that there were other alternatives in Pakistan to their man Musharraf. Clearly, these alternatives had to be a political party. After elections ushered in a democratically-elected government, despite the pre- and post-election manoeuvrings, it was time for civil society and the lawyers to ‘hand over the torch’ to elected representatives, so they could hammer out the restoration issue constitutionally in whatever time it takes. This at least is the view taken by one faction of the pro-democracy camp.
Another faction (joined by others with dubious democratic credentials) wants street agitation to counter the Zardari-led PPP’s delay in its pledge to restore the judges. Interestingly, those who were in favour of boycotting the elections are also in the forefront of this agitation, apparently oblivious to the democratic potential that the elections have unleashed.
The government’s recently-announced increase in the number of judges appears to be part of a move towards restoring the ‘non-PCO judges’ — the sticking point appears to be the man who sparked the prairie fire. Those who have been keeping the pressure on regarding the judges’ restoration refuse to consider this possibility, citing the suffering that the ‘chief’ and his family have faced in months of incarceration and the tremendous symbolic position he now occupies.
The ‘chief’ himself is not willing to indicate that if restored, he would not resume office on the grounds that he has become too politicised for the position. There are related concerns about the sanctity of the judiciary having been compromised, given the recent activism and its elimination of the requisite distance between judges and lawyers — how are they to appear before each other in court?
The chief justice’s defiant ‘no’ to a uniformed army chief last year was admirable. His defiance today may prove disastrous in a situation where it is critical to support the coalition and ensure its survival, even at the expense of an individual. From the president, one can hardly expect any such magnanimous and wise gesture. But from the chief justice, such a unilateral and unconditional gesture could open the doors to a new era in Pakistan even if the president stubbornly clings to his position.
The failure of the coalition will throw us back into the lap of undemocratic forces who are only waiting for such an opportunity.
Beena Sarwar is an independent journalist and documentary filmmaker based in Karachi.