Opinion

The Judiciary Crisis: An Opportunity for Democracy
By Javed Ellahie, Esq.
San Jose, CA

After Muneer Malik graduated from Santa Clara Law School magna cum laude in 1974 and passed the California Bar Exam he returned to his home country of Pakistan to promote justice and civic causes. As head of the Pakistan Bar Council, the highest body of lawyers in Pakistan, he now finds himself playing a crucial role in the duel between the President of Pakistan, General Pervez Musharraf, and the Chief Justice of the Pakistan Supreme Court, Iftikhar Chaudhry, as he defends Chaudhry against the suspension order issued by Musharraf.
Chaudhry was suspended apparently when he was about to issue a ruling prohibiting Musharraf from simultaneously being the President and the uniformed chief of Pakistan’s armed forces. In taking on the obligation to defend the Chief Justice, Muneer has himself become a target of Musharraf and his supporters. He has received death threats, his law office was sealed off by the government on May 9 on the pretext of a zoning violation, an order that the Sindh High Court promptly nullified, and on May 10, at 3 am, his residence, where he resides with his wife and two children, was sprayed with machine gun fire. Fortunately, no one was hurt.
This action is of utmost concern, especially in the light of the 2006 report released by the Bureau of Democracy, Human Rights, and Labor on Pakistan: “Security forces extra-judicially killed individuals associated with criminal and political groups in staged encounters and during abuse in custody. Human rights monitors reported 189 instances of encounter killings.”
James Madison’s pronounced that “the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny”. One wonders what label Madison would have placed on a President who controls not just the “civilian” branches of the government but has the fifth largest army in the world, an army larger than that of the United States, at his beck and call.
In Pakistan, it is generally corrupt politicians seeking the highest office who, while claiming to carry the mantle of democracy, extol the masses to come out on the street to force an incumbent’s resignation. The present crisis is refreshingly different. On the one hand you have the government machinery attempting to cling to power as it sees its stranglehold threatened by a Judge; and on the other hand, you have attorneys who have sworn to uphold the law question the executive’s authority to suspend the Chief Justice of Pakistan’s highest court, place him in house arrest and subject him to abuse by the local constabulary.
Musharraf made a colossal error in attacking the independence of the judiciary. He can rectify this error by recognizing that an independent judiciary is essential for the survival of a country like Pakistan. Once he achieves this recognition he can act as a catalyst for patriotic and democratic forces in Pakistan to meet and create the necessary structure to guarantee a permanent independent judiciary. Pakistan certainly has intellectuals like Mr. Shareef ud din Pirzada who would, at this stage of their life, prefer to engage in constructing just such a structure rather than defending the power of a ruler that is here today but will be gone tomorrow. Pirzada, Muneer and other leading jurists involved in the present struggle need to sit down face to face and come up with a solution that is beneficial not to Musharraf or Chaudhry but to justice and to Pakistan.
It is also essential that Pakistan use its security apparatus to protect and guard those who are brave enough to stand up to protect a vital element of the State, i.e. the judiciary from terrorists acts by Musharraf supporters. It would indeed by ironic that Musharraf who has played a leading role in fighting terrorism is perceived to be standing by idly while terrorists attack the lawyers of Pakistan.
A strengthened judiciary would be the greatest gift that Musharraf, Pirzada and all those who join in this effort can leave for Pakistan. It will be a legacy that will be remembered by future generations. If Musharraf, however, chooses the same path that unfortunately some previous Pakistani leaders have taken, i.e. to ruthlessly trample all those who come in their way, such action will crush not just the proponents of freedom, it will destroy Pakistan. Musharraf will then be remembered as just another ruthless dictator who came, who saw, who conquered and destroyed.
(Javed Ellahie is an Attorney who practices law in San Jose, California and is also licensed to practice in Pakistan)

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