Fresh from a legal and political battle that pitched him against the country’s military strongman, the restored Chief Justice of Pakistan, Mr. Iftikhar Mohammad Chaudhry, is a man on a mission. After his highly politicized case, in which he sometimes appeared to be tacitly accepting support from political parties opposed to the Musharraf administration, it was natural that questions would be raised about his ability to deal fairly with cases involving the incumbent President.
But whether he likes it or not, Justice Chaudhry’s recent record confirms the fears that he has become politically tainted. His recent brazen threat to the heads of Pakistan ’s military intelligence agencies is a case in point.
Thanks to him, Mr. Naeem Noor Khan, a dangerous man with proven links to Al Qaeda, is today a free man. The Chief Justice secured the militant’s release by dragging the director of the F.I.A. to his chamber and warning him that he would haul the chiefs of military intelligence to the Supreme Court if the ‘missing persons’ – the term used by rights activists for those detained by the spooks – were not released.
Detention without court order is a debatable point here. But the combative mood of the Chief Justice, combined with his refusal to hear the case against these ‘missing’ persons, leaves no room to doubt that his hard line has more to do with politics than with judiciary.
This case should alarm those who want to see rule of the law in Pakistan contributing to strengthening the state, not weakening it. The Chief Justice’s challenge to the executive smacks of a personal and political vendetta.
Just last March, these very intelligence chiefs were surrounding the Chief Justice in the President’s office, part of Gen. Musharraf’s failed bid to convince Mr. Chaudhry to resign. What followed was a bitter legal and political battle that ended with the famous July 20 reinstatement of Mr. Chaudhry in his current office.
Now, in handling a case involving the spy chiefs, the impartiality of the Chief Justice comes into question. And if this is not enough, there is more to damage his credibility.
Mr. Chaudhry led rallies during the legal battle against the President’s move. This battle could have remained within the confines of the law and the Supreme Court Building, its natural playground. But it assumed unmistakable political overtones, culminating in the famous full-throated chants by the Chief Justice supporters against a major pillar of the State, the Armed Forces of Pakistan. These chants were not made on the streets but right within the four walls of the Supreme Court Building in the heart of the federal capital. If this was not politics, I don’t know what is. The Chief Justice was sitting right in the middle of that crowd.
The Chief Justice also led public rallies driven around in cars adorned by the flags of opposition political parties. Sometimes the cars transporting the Chief Justice actually belonged to members of political parties. These parties have a partisan agenda working against the Musharraf administration. The political parties have a right to have such an agenda. A Chief Justice of the Supreme Court, however, does not.
Not once did the Chief Justice try to turn down the favors of the opposition political parties, not even for the sake of asserting his own impartiality as the Chief Justice of the nation. [For example, when his own supporters were talking publicly about him as a possible consensus opposition candidate in the upcoming presidential election, Justice Chaudhry quietly enjoyed the debate, maybe even encouraged it, but never stepped in to draw a line in the sand as an impartial head of the judiciary.]
By the end of his legal battle, the Chief Justice had in effect turned into a symbol of political opposition to an incumbent government. The aggressive mood in the Supreme Court building these days is a continuation of this political partisanship rather than being a matter of administering justice. Make no mistake about this. The Chief Justice is part of the political wrangling. And it’s payback time for those who stood on the wrong side of the Chief Justice.
This is a dangerous precedent because, for the first time, hardline elements within the judiciary are pushing for a showdown with the military institution. In doing so, the cracks between the pillars of the Pakistani state are growing apart, which risks bringing the house down on everyone.
Take the case of the so called ‘missing persons.’ There is no doubt that the reality on the ground does not support the rosy, idealistic and good-intentioned interpretation of the law as applied by the Supreme Court in this case.
These days we have evidence that multiple foreign elements are involved in some of the instability in our western regions. There are people involved in covert acts of sabotage, serving suspicious interests. Naturally, arrests are made in this connection that may not exactly follow procedures. There is also a grand counterintelligence operation involving several countries that is currently underway in our neighborhood. Not all of it is friendly. Also, there are reports of foreign involvement in attacking Chinese interests in Pakistan.
In these circumstances, as a Pakistani, I would expect the Chief Justice of my country to uphold justice but at the same time to also understand some of the national security compulsions of his nation.
Rulings, such as the one in favor of Mr. Naeem Khan, might have been acceptable if Pakistan were the Netherlands with neighbors such as Belgium and Germany . But with neighbors like Iran , Afghanistan and India , in an area lying at the center of international intrigues, the recent judgments of the Supreme Court are truly astounding.
It is obvious that the Chief Justice is leading the judiciary to directly challenge his former legal opponent: the Pakistani president. Even in Nawaz Sharif case, the Chief Justice made sure not to accord any acknowledgement whatsoever to the documents signed by the Sharif brothers. The undeniable fact that the deposed prime minister and his family entered into an agreement to leave the country in exchange for dropping charges – a classic example of how politicians prefer expediency over principles – deserved at least some attention by the Chief Justice. Mr. Sharif could have been censured for seeking an easy exit to avoid facing the law. Instead, the Chief Justice completely ignored the documents, strengthening the impression that the Supreme Court is pursuing a political agenda.
Some activists within the legal community argue that what they are doing is part of the struggle for the restoration of democracy. But it is ironic that the Supreme Court is hounding the government while completely ignoring the very visible and massive democracy-building steps taken by the Musharraf administration. The fact that it’s a military-led government does not lessen the impact of these reforms.
At the same time, the Supreme Court is showing absolutely no interest in a basic democratic deformity in the country by ignoring how all the major Pakistani political parties are yet to hold free and fair internal elections for the top party slots, thus denying the vast majority of ordinary Pakistanis the right to serve their nation through elected party office. No one in the legal community has asked the political parties that rallied with them why they have lifetime presidents in their parties.
In short, the current combative judicial activism is politically tainted and does not bode well for the harmony between the major pillars of the State.
There is another problem looming on the horizon. The case of the so called ‘missing persons’ has the potential of opening the appetite of some political stakeholders to call for clipping the powers of the executive. This must be resisted at all costs for the sake of a future strong Pakistan .
If anything, Pakistan at this juncture of its history needs a powerful executive. In fact, the powers of the Presidency must be expanded as part of larger reforms involving transforming Pakistan from a parliamentary into a presidential form of democracy, augmented by a National Security Council to ensure a voice for the military institution. The troika system in Islamabad – power divided between a President, a Prime Minister, and the Army chief – has been at the root of the chronic political instability. Let’s do away with it.
As Pakistanis, we have condemned politicians and military rulers for overstepping their mandates and polarizing national politics. Let’s ensure that the same check applies to the judiciary.