March
16, 2007
Suspension of Pak Chief Justice
Triggers Controversy
In a dramatic move President Musharraf suspended
last Friday (March 9) the Chief Justice of Pakistan,
Iftikhar Muhammad Chaudhry, and made a reference
against him to the Supreme Judicial Council (SJC)
sparking a controversy over the legality and advisability
of the act and irking the legal fraternity, their
Councils and Associations. The legal community boycotted
the courts on March 12 and declared March 13, when
the hearing of the case will commence by SJC, as
a ”Black Day”.
Most of the lawyers opposed the President’s
action as it derogated the status of the highest
judicial authority of the country and also violated
the provisions of Article 209 of the Constitution.
Since the SJC accepted the reference without raising
any objection to the procedure, one has to focus
on the crux of the matter.
And, that is what holds interest also for a student
of Pakistan affairs.
Considering Justice Chaudhry’ s antagonistic
strain, his assertive and ‘egoistic’
traits, his abrasive attitude towards lawyers and
senior officials, and above all his track record
of giving verdicts causing severe embarrassment
to the government, he had become an inconvenience
that could have been tolerated but was not.
With the general elections on the horizon, with
the desire of the ruling coterie to have Musharraf
re-elected as President by the existing assemblies
and his intent to remain in uniform and at the helm
of his constituency – the army - and the Chief
Justice Chaudhry’s reluctance to lend judicial
crutches to such agendas, an urgency and a spirit
of intolerance had generated that unfolded the drama.
Also to keep in sight is the fact that President
Musharraf is under severe pressure of the United
States to do away with all vestiges and breeding
grounds of Taliban in the Frontier region. He could
not follow the niceties of habeas corpus law in
dealing with suspected terrorists. The Chief Justice
had issued notices to the government to produce
before the court all missing persons. That was perhaps
the last straw on the back of the administration.
Incidentally, the Patriot Act too dispenses with
several provisions of human rights in investigations
of suspects. The prisoners of Guantenamo Bay and
other secret prisons have no habeas corpus rights.
Justice Chaudhry had made a name for himself by
doing precisely what the administration wanted the
least. Last year he blocked a government bid to
sell bulk of the shares of the state-owned Pakistan
Steel Mills to a private consortium. This was a
blow to the administration and cast a shadow of
suspicion on the integrity of some senior officials.
In another case, he stopped the decision of the
CDA, Islamabad, to turn a public park into a mini
golf course. He took suo moto actions concerning
human rights, women and environment. These were
applauded.
While he projected himself as a monument to integrity,
the open letter of Naeem Bokhari, advocate, to the
President presents the obverse side of the coin.
He has mentioned the CJ’s alleged insistence
on protocol, his alleged desire to be presented
a guard of honor in Peshawar, his alleged appropriation
of a Mercedes-Benz car, the use of a Sindh government
plane to attend a High Court function. Bokhari has
also mentioned the CJ’s son, Dr. Arsalaan,
acquiring through his father’s good offices
a coveted position in the FIA although he had not
qualified for it. The Supreme Judicial Council may
be investigating these allegations.
One cannot help wondering why a self-respecting,
if not haughty, person like Justice Chaudhry elected
to obey the summons of the President to present
himself at the Army House where he was met by the
President in uniform accompanied by the Prime Minister.
He did not respond to the charges, not did he offer
to resign. Here in the US, Supreme Court judges
decline invitations to tea by the President as they
consider it improper to visit the White House.
The constitutions of Pakistan have invariably assured
the independence of the judiciary. But the constitutional
history of the country is replete with instances
where the provisions have been followed more in
breach.
Governor-General Ghulam Mohammad started the process
of destroying the country’s constitutional
and democratic structure. His orders dissolving
the Assembly in October 1954 was found ultra virus
of the Constitution by the Sindh High Court. But
the Federal Court came up with the “Doctrine
of Necessity” that has held the ground since
then. This moot judgment given by Justice Mohammed
Munir has been used by military and civilian despots
to prolong and consolidate their rule. Justice Munir
wrote towards the tail end of his life a booklet
“From Jinnah to Zia” in which he has
tried to justify his verdict. It is a poor effort
and failed to convince the readers – I for
one.
Generals Ayub, Zia and Musharraf all overthrew elected
governments. Once in power, they defanged the courts
by appointing yes-men to the apex judiciary so as
to ensure uninterrupted legitimization of all their
actions. Zia excelled all others. He got rid of
no less than five judges of the Supreme Court and
also sacked Chief Justice Mohammad Yaqoob Ali. Zia
remained both the President and army chief till
his death. Musharraf is emulating him now.
The most lamentable part of Pakistan‘s judicial
history is the post-Zia period when the two elected
Prime Ministers, Benazir and Nawaz Sharif, staffed
the judiciary with their handpicked judges and removed
those who were unpliable. It was during Nawaz Sharif’s
period that hoodlums of the ruling party attacked
the premises of the Supreme Court and made the Chief
Justice flee for life.
It is but natural to wonder whether the episode
of last Friday spark country-wide strikes and agitations
forcing the government to resign in favor of an
interim administration till next elections. It is
difficult to predict with confidence at this stage.
The requisite momentum of agitation is not in vision
till the time of writing.
Musharraf is likely to remain at the helm as long
as he enjoys the support of the US administration
and assured of its $780 million annual aid that
includes $300 million for the military.
arifhussaini@hotmail.com
