Inter Press Service

November 3, 2007

Analysis

KARACHI, Nov 3 (IPS) - By taking a stand on
crucial constitutional issues, implicit in cases
before it, the Pakistan Supreme Court may have
raised the political temperature to a point
where, in order to remain in power, President
Gen. Pervez Musharraf felt compelled to declare
emergency on Saturday.

Rumours of an emergency had been persisting for
several days, but on Saturday evening private
television news channels were taken off the air
and the state-run Pakistan Television (PTV)
announced: ’’The Chief of the Army Staff
(Musharraf) has proclaimed state of emergency and
issued provisional constitutional order (PCO).’’

According to various sources, judges of the
higher judiciary were asked to take a new oath
under the provisional constitutional order (PCO)
— which a bench of the Supreme Court bench
rejected.

The court ruled that no judge and chief justice
of the Supreme Court and High Courts could take
oath under the PCO and that no civil and military
officials could abide by any order of a
government that went against the constitution or
the law. The prime minister and the president
were made parties in the ruling.

Soon afterwards, troops entered the Supreme Court
building and ’escorted’ Chief Justice Iftikhar
Chaudhry out, his services ’terminated’. The
president of the Pakistan Supreme Court Bar
Association (SCBA) Aitzaz Ahsan and other members
of the influential lawyers’ body were also
arrested.

The PCO, read out on PTV, squarely blamed the
judiciary for the imposition of emergency rule
and accused it of interfering with the fight
against Islamist militancy. "Some members of the
judiciary are working at cross purposes with the
executive and legislature in the fight against
terrorism and extremism, thereby weakening the
government and the nation’s resolve and diluting
the efficacy of its action to control this
menace,’’ the order said.

But this only reinforced the general impression
that the emergency had been declared in order to
keep Musharraf in power. Talking to television
channels on a mobile phone, from the restroom of
the police station where he was detained, Ahsan
termed the emergency and the suspension of the
Constitution ’illegal’.

The Supreme Court is seized of a slew of
petitions likely to have far-reaching
implications on Pakistani politics — including
the validity of Musharraf holding the dual
offices of president and army chief. Musharraf’s
term as president expires on Nov. 15.

After Musharraf pledged to quit the army, before
starting a new presidential term, the court in a
short order dismissed these petitions as "not
maintainable" and allowed the presidential
elections to be held on Oct 6 as scheduled —
although the results could not be announced until
the final verdict. This in effect allowed
Musharraf to contest the presidential elections
while remaining army chief.

The final verdict has been expected for some
time, but the hearings kept getting delayed.
"This is not a matter that should take so many
days," said eminent jurist and former High Court
judge Fakhruddin G. Ebrahim, talking to IPS on
Friday.

The delay has been attributed to the great
pressure the judges were obviously under.
Musharraf’s refusal to say whether he would
accept a negative verdict from the court also
fuelled rumours of emergency rule or martial law.
"Musharraf is behaving like a bad loser as the
decision was not going to be in his favour," said
Ahsan.

Until about a year ago, ’judicial activism’ in
Pakistan was largely limited to taking notice of
human rights cases involving, for example,
violence against women. But in terms of politics,
this activism traditionally validated
undemocratic actions rather than striking them
down, commented Anwar Syed, professor emeritus of
political science at the University of
Massachusetts, United States.

The military has staged several coups, seized the
government, abrogated the Constitution or put it
in abeyance (1958, 1977 and 1999). In addition,
various presidents dismissed the National
Assembly (1988, 1990, 1993, and 1996). The
judiciary validated these situations by invoking
the ’doctrine of necessity’, which was not a part
of the law, but "a rationale for evading or
defeating the law. Resort to it is, therefore,
clearly an exercise in judicial activism,"
commented Syed.

Democracy advocates argue that this doctrine
should be buried and the judiciary under Chaudhry
appeared inclined to agree.

The Supreme Court has been playing an
increasingly pro-active role over the last year,
starting with the cases of enforced
disappearances that have been rising alarmingly
since Pakistan became a partner in the U.S.-led
’war on terror’. The media has been supportive to
this process.

In July 2006, Pakistani journalists working for
the BBC Urdu service initiated a ground-breaking
special debate on Pakistan’s ’disappeared’. Held
in the capital Islamabad, the debate included
several government officials and families of the
disappeared.

"In effect, this broke the silence around the
issue," said Mazhar Zaidi, a producer with the
BBC in London who was involved in organising the
event. "Once a powerful international media
organisation takes notice of something, local
journalists feel safer taking it on." The local
media had held back due to fear of the powerful
intelligence agencies that were behind most of
these disappearances.

The greater openness generated public awareness
and facilitated collective action by the
families. When two of the affected families filed
a petition in Aug. 2006, seeking information on
41 missing persons, the Supreme Court took the
matter seriously. Many individual petitions were
also filed. The independent Human Rights
Commission of Pakistan in February 2007 filed a
joint petition seeking information on 150 missing
persons.

The court’s pro-active stance shook up the
intelligence agencies and led to the production
of several missing persons in court.

"The Chief Justice took an excellent stand in the
missing persons case," said lawyer Fakhruddin G.
Ebrahim. "Every time a person was found, the
court said this is not good enough. When was this
person picked up and why? They were pushing for
accountability."

Political analysts speculate that this
contributed to Musharraf’s decision to ’suspend’
Choudhry in March this year.

But this, in turn, catalysed a four-month-long
’lawyers’ movement’ that came to symbolise
Pakistan’s long struggle between
constitutionality and military rule. The
stand-off ended in July when a full bench of the
Supreme Court reinstated Choudhry. The court then
returned to the cases of the disappeared with
renewed zeal.

Another case that analysts saw as forcing
Musharraf’s hand relates to exiled,
twice-elected, former prime minister Nawaz Sharif
who has filed a petition on the question of his
right to return and participate in politics.

The Supreme Court upheld his plea on Aug. 23.
When the government bundled the Pakistan Muslim
League party leader back to Saudi Arabia within
hours of his landing in Islamabad on Sep. 10, his
lawyers promptly filed a contempt case against a
long list of respondents for violating the court
verdict.

The hearings soon falsified the government’s
claims that Sharif had left ’voluntarily’, bound
by his ’agreement’ with the Musharraf government
soon after the military coup of 1999. As the
truth began to unravel, Sharif’s unceremonious
departure emerged as part of a long-standing plan
initiated at the highest level.

The apex court was also reviewing a petition
regarding the National Reconciliation Ordinance
(NRO) that President Gen. Musharraf promulgated
on Oct. 5 a day before the presidential
elections. The NRO cleared the way for another
former twice-elected prime minister, Benazir
Bhutto, to return to Pakistan without being
arrested for the corruption charges she faced
after being ousted from power in 1996.

Bhutto has been criticized for this ’deal’, in
exchange for which her Pakistan People’s Party
legitimised Musharraf’s presidential candidacy by
abstaining from the vote. The opposition
boycotted the proceedings in protest at
Musharraf’s nomination as President while still
army chief.

Another case relating to fundamental rights was
that of police brutality on lawyers and
journalists outside the office of the Election
Commission in Islamabad when the presidential
nomination papers were being filed on Sep. 29.
The main TV channels broadcast the beatings in
graphic detail. The court’s suo moto notice of
the incident resulted in the suspension of the
top police officers involved.