April 11, 2007

Pakistan :Some unanswered questions about the judicial crisis

Some unanswered questions about the judicial crisis — Ijaz Hussain

We may not have an answer to the genesis of the judicial crisis but we certainly have an answer to its impact. It is true that the crisis did not unleash a people’s movement against the regime, but it certainly showed that Musharraf had lost the moral claim to power

The Musharraf regime is in a real soup as a result of the judicial crisis. For the first time in seven years it is engaged in an existential struggle. When Musharraf, the commando, reportedly met Kamran Khan for the Geo interview following the manhandling of the chief justice (CJ) and the attack on the Geo office in Islamabad, he for once really looked worried and defensive. He kept pleading his innocence by completely disassociating himself from these reprehensible acts.

The present crisis, which apparently started out of the blue on 9th March, remains a mystery till today. It raises a number of questions that need to be addressed if we want to fully comprehend its genesis and dynamics.

To begin with, who was at the origin of the reference? We know that Punjab’s Chief Minister did not like the CJ because he killed his New Murree project in which he had big financial stakes. Similarly, the prime minister was miffed at the way he was treated in the Pakistan Steel Mills case, if we disregard the rumour that he would have been one of the beneficiaries of the failed deal. Again, the ISI got offended by the way the CJ handled the missing persons case. The fact that Nawab Akbar Bugti at one time appointed him as advocate general must have made him look more villainous. Finally, his ambiguous stand on Musharraf’s re-election as President-in-uniform by the existing assemblies must have been the last straw on the camel’s back. It would be interesting to know who played what role in egging the president to take on the CJ.

It appears as if the whole issue was not properly analysed before moving the reference. The Musharraf regime’s hands are not clean, as it finds itself in the company of some of the most corrupt politicians in the country, not to speak of its promoting lotas. According to Transparency International Pakistan was never as corrupt as it is today. Notwithstanding this damning verdict, Musharraf moved the reference in which he charged the CJ, among others, with using his clout to further the career of his son and seeking a protocol to which he was not entitled, while at the same time tolerating the presence of corrupt politicians in his own government.

Musharraf’s advisers evidently are not very clever. They apparently never thought that the CJ could have been handled in a more subtle way to make him do the needful regarding the re-election of the president. For example, the government could have let the Damocles’ sword of charges listed in the reference hang over his head without making them public to make him bend to its will.

If he has been catapulted into the present dizzying heights of popularity it is in large measure due to the bunglings of the government. And if he had defied the government he could have been neutralised by winning over other members of the bench who, Musharraf knows from experience, would have been highly amenable to manipulation. After all, the CJ does not have more than one vote in a case.

Secondly, who advised the government to make the CJ “non-functional”, get Justice Javed Iqbal to hurriedly take oath as acting CJ while Musharraf kept the CJ engaged, and subsequently send the latter on “forced leave”? Again who advised him to do all this when Justice Baghwandas, who was next in line but whose loyalties were suspect, was on leave in India?

It is obvious that whosoever advised the government was either incompetent or not a friend of the government. It would have been much more appropriate to send the reference to the Supreme Judicial Council (SJC) headed by the CJ as he could not have presided in his own case and the next senior-most judge would have taken his place. Had he done otherwise, hell would have broken loose against the CJ.

Thirdly, why was no frontline lawyer prepared to defend the government before the SJC? Justice (r) Fakhruddin G Ibrahim refused to take up the government’s brief in the early days of the crisis. The other legal stalwarts like S M Zafar, Sharifuddin Pirzada and Wasim Sajjad also did not come forward to defend the government. Is the explanation for the reluctance of the legal luminaries to defend the government to be found in their realisation that it would be morally reprehensible to support it? Or were they scared of being excommunicated by the Pakistan Bar Council, that has over the last few years developed a somewhat effective watchdog role over the affairs of the bar and the bench? Or did they think that they should not support a tottering regime?

Fourthly, why were the government ministers like Sher Afghan Niazi, Aftab Khan Sherpao and other leaders like Senator Wasim Sajjad reluctant to take up cudgels on behalf of the government? Was it so because they deemed the government’s position untenable or did they think that its days were numbered or simply because the instinct for political survival dictated it? It is noteworthy that the PML (Q) President Chaudhry Shujaat Hussain, speaking from his medical retreat in the US, disassociated himself from the reference by declaring that it was a fight between the army and the judiciary. The ministers started speaking in favour of the government’s decision to move the reference only after Musharraf pushed them into it. He also reportedly had one-to-one meetings with some members of the ruling coalition in which he reprimanded them for their acts of omission in the matter.

Fifthly, who was responsible for manhandling the CJ and the attack on the Geo office in Islamabad? The graphic images of the CJ being pulled by the hair to the waiting government vehicle and the smashing of the Geo office were simply appalling to say the least. They came on the heel of an earlier act of assault and battery perpetrated on the protesting lawyers that injured many of them, including the PPP senator Latif Khosa. The foregoing series of events were a turning point in the present crisis as the big claims made by the government towards respect for independent judiciary, media freedom and the right of free assembly were utterly exposed. Musharraf’s subsequent attempt to explain these sordid acts in terms of a conspiracy against him failed to carry conviction.

We may not have an answer to the genesis of the judicial crisis but we certainly have an answer to its impact. It is true that the crisis did not unleash a people’s movement against the regime, but it certainly showed that Musharraf had lost the moral claim to power. The man whom the middle class backed for his liberal views and for putting the country on the road to development was fully exposed by this crisis. His latest attempt to make a Machiavellian deal with corruption-tainted Benazir-Zardari duo reinforces this impression.

The writer is a former dean of social sciences at the Quaid-i-Azam University. He can be reached at hussain_ijaz@hotmail.com

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