Invigorating courts
[ By Baseer Naveed ]
Military action against Iftikhar Chaudhry, the chief justice of Pakistan, has generated an unprecedented political crisis. In the past, the army and the judiciary had always been good friends, united in subverting democratic aspirations of the people. The judges normally acted as defenders of the armed forces, not of the rule of law. Only once did the Supreme Court call a military dictator a “usurper” – and that was in 1971, a year after the person in question had died and was thus safely out of the way.
Pakistan’s higher judiciary was never allowed to work independently. Its role is also diminished by the fact that it is overburdened. Today, there are more than 20,000 cases pending in the Supreme Court alone. Normally, it takes cases in the lower courts five to six years to be decided, appeals may drag on for up to 20 years. Moreover, Pakistan has a problematic dual legal system with a secular judiciary and an Islamic one. In cases of murder, rape and other awful crimes, Shariah courts often pass judgments that secular courts find difficult to revert.
For a long time, Pakistan’s secular judiciary looked like a dead and meaningless organisation. It was so impotent that military leaders did not even consider it whenever they were trimming down other institutions. Normally, the judicial “doctrine of necessity” allowed non-elected government forces to act as they pleased (see below).
Neither army nor bureaucracy ever really felt restrained by the nation’s constitution or other official laws. Justices who dared to oppose military or bureaucratic decision-making, were quickly transferred to other courts or lost their jobs entirely. In many instances, their family members were threatened.
Today, however, that kind of intimidation does not seem to work anymore. Pakistan is witnessing a broad-based popular movement for an independent judiciary and the rule of law. The situation is tense, and it is impossible to tell which forces will prevail. State-sponsored violence has erupted. On 12. May alone, for instance, 51 people were killed in Karachi, when police, army and the local administration cooperated in making a rally impossible.
The popular movement erupted with force in March, after President Pervez Musharraf, a military ruler since October 1999, suspended Chief Justice Chaudhry from office. The judge was summoned to Army House, he was manhandled there and detained for several hours. An interim chief justice was sworn in.
In the past, several judges had been personally humiliated by military leaders, but this time the action was seen as an affront towards the legal profession as a whole. A lawyers’ movement sprung up immediately, boycotting courts and staging rallies. This movement has since gained the support of various political parties and civil-society organisations.
Self-confident jurists
Indeed, Chaudhry was an unusual chief justice, who took some remarkable decisions. For instance, he formed a Human Rights Cell at the apex court. During his tenure, the Supreme Court ruled against high-ranking officers in cases dealing with the privatisation of government businesses or land grabbed by civil and military authorities. The higher judiciary, following the Indian example, had begun taking on cases of public interest litigation suo moto (Baxi, 2004). In other words, the justices started proceedings on their own when it was brought to their attention that state agencies had breached laws. Most important, the Supreme Court began considering cases of “missing” persons. These people had been arrested by law-enforcement agencies, which denied knowledge of their whereabouts. The secret services in particular were uncomfortable with this kind of judicial interference.
Pakistan’s lawyers, on the other hand, appreciated the new trend. This was all the more so, after the Supreme Court had ruled on a matter that directly concerned them. The Court decided that, on the basis of the votes cast, Muneer Malik was the rightful president of the Supreme Bar Association, an influential body of jurists. After the election, Malik Quayyum, a retired judge with close ties to Musharraf, had unlawfully assumed that position with support from government lawyers. The Supreme Court thwarted this attempted inner-Bar coup, sending a clear message to government that the judiciary was making independent decisions.
The government is not accustomed to this kind of self-assured, independent action. When General Musharraf seized power in 1999, he had been able to stem inklings of judicial opposition comfortably. For instance, he introduced a “Provisional Constitution Order” (PCO) in January 2000. Putting the constitution of Pakistan in abeyance, he compelled judges of the higher judiciary to take oath under PCO. Many judges refused to take oath on the military-made PCO, and thus Musharraf could appoint a chief justice of his own choice. After these manoeuvres, the Supreme Court of Pakistan not only justified the military coup in 2000, it also granted Musharraf powers to amend the constitution – something the military command had not even asked for.
In Pakistan, the president appoints the judges of the High Courts and the Supreme Court after recommendation by the Supreme Judicial Council. Judges are thus appointed according to political needs, and in the past, they did not go against the executive powers.
Change, however, had been brewing up in the legal profession for a long time. There had been a positive movement among a new generation of judges who came after the movement of 1983 against the General Zia ul Haq. Many were directly or indirectly involved in the movement for the restoration of democracy (MRD) of 1983. Most of the judges of this generation were unhappy with the judges’ role in past periods of martial law. They had hoped that, in a democratic setting, the political parties would support judicial independence and supremacy. In the 1990s, when Pakistan was run by civilian governments, the judiciary tried to assert its constitutional role. However, the political parties in power curbed it in similar ways autocratic regimes had done before.
It is generally said that had General Musharraf dealt with the Supreme Court more quietly, the way earlier military rulers had done, there would have not been such a hue and cry. That notion is wrong. If one analyses the history of the judiciary, particularly in respect to martial law, it is clear that dissatisfaction had become rampant in the legal community, which finally wants to play its constitutional role.
Outlook
The recent movement is not about to halt. In spite of brutal repression, peaceful rallies and pickets are organised. The media and a number of political parties are supporting this new, secular opposition to the government. On the other side, the military is obviously considering steps against the media and political activities in general. Untypically, Musharraf’s rule had so far not gone along with harsh repression of the freedom of speech and association per se. That may be about to change.
It seems likely that the government will keep control over the judiciary for some time. However, it should be very difficult to suppress the progressive spirit in the legal community. There are chances that a new political party will emerge. Some hope that Chaudhry will go into politics and become a strong leader. On the other hand, it is possible that the military government will provoke clashes and perhaps even blame neighbouring countries of manipulating the lawyers, only to impose an emergency or martial law.
While the country’s future is in the balance, it is obvious that the army will hardly stay in power should Chaudhry be re-instated as chief justice. Though that does not seem likely right now, the army has never before looked as weak as it does today. Anything may happen.