Baseer Naveed

(Ed. Note. The writer is a senior researcher at the South Asia Desk of the Asian Human Rights Commission, Hong Kong)

The action of the President of Pakistan against the Chief Justice of the Supreme Court has broken the invisible but strong alliance between the army and the judiciary, which had worked hand in hand in the past to weaken all efforts at establishing a democratic society in the country.

Since the creation of Pakistan, the army and the bureaucracy had a good friend in the judiciary who was always available to the non-parliamentary forces to act freely in the name of 'saving the country'. General Musharraf made a blow against this 'holy alliance' or troika, the army, the bureaucracy and the judiciary. The two strong pillars of the troika, the army and the bureaucracy, have always afforded to the third pillar, the judiciary, the status of 'sacred cow' so much so that few have the courage to criticize the judiciary in cases of extra constitutional matters which receive sanctions from the other two pillars.

And though the government of General Musharraf is desperately attempting to cover up its previous harsh action against the Chief Justice through bribes and more soft actions, things are out of the control as far as the government and the establishment are concerned.  In this regard, one has to indeed salute the courage demonstrated by the legal community and the Bar Associations on their prompt reaction to the decision of the military general and the massive blow this decision was to the independence of the judiciary as a whole.

The courage shown by the legal community to some extent also indicates the level of humiliation they have been enduring at the hands of the military rulers and their extra constitutional actions. They were also ashamed of the judicial decisions in favor of the usurpers.  This is the history of Pakistan's judiciary in that it has always taken shelter behind the 'doctrine of state necessity' to give legal and constitutional cover to extra constitutional forces to enable the latter to govern as they very well please. For instance, when General Musharraf overthrew the elected government in October 1999, the Supreme court of Pakistan not only justified the military coup d'etat but also gave him powers to amend the country's constitution according to his will.  One can imagine how kind and generous the Supreme Court felt towards the military rulers at the time General Musharraf's martial law was challenged that a Full Bench of the Court, did not even find the need to inquire from the military government whether they needed power to amend the Constitution. But the judiciary thought that the general needed this, and in apparent sympathy with the extra constitutional forces, awarded power to the Pakistani army to amend the Constitution. In fact, this had never been requested by the military rulers.

The highest judiciary in the past had always been sympathetic to the army rulers and had never considered them usurpers during their decades of rule. On one occasion a bench of the judiciary called one Army General, who was responsible for ruining the country in 1971, a usurper—but one year after his death, when it was certain he was safely out of the way.

The mistake of the judiciary was that it believed it was an equal partner in the 'Establishment'. But through his action General Musharraf has clearly conveyed the message that the judiciary in the eyes of the military and the bureaucracy is nothing more than subservient. Therefore the army wanted to assert its position against the judiciary. Actually this struggle started by the General is one between the army and the judiciary and the army will never retreat from its position. This situation was long awaited by civil society who never liked the role of judiciary. The President, General Musharraf has provided this opportunity to the democratic forces in the country to have a final confrontation with the sole powers of the army, who in real sense controls all commercial and non-commercial institutions of the country. Through the breaking of this holy alliance it is generally perceived in the political and intellectual circles that a war of revenge will begin between army and judiciary.

This situation, which was never created by the calculated movement of democratic forces but by the powerful institutions of Pakistan who were so arrogant in their affairs that they never thought anything, might backfire. Therefore the blessing in disguise is that the judiciary will tilt its position towards the rule of civilian law and will hopefully hereinafter never side with extra constitutional forces. It will be answerable to civil society rather than extra constitutional elements. In future the judiciary will also think twice before giving legal status to martial law or extra constitutional forces.

Lastly, General Musharraf, who was supposed to receive a verdict from the Supreme Court about his third tenure as President may now be disappointed considering this latest development in the judicial crisis.