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POLITICS-PAKISTAN: New Gov&#39t Must Tackle Sacked Judges Issue First

Beena Sarwar

KARACHI, Feb 25 2008 (IPS) - While the hung verdict thrown up by this month’s general elections has forced bitter political rivals to try forming a coalition government, the pressing issue remains that of reinstating members of the higher judiciary "who ceased to be judges" after President Pervez Musharraf imposed emergency rule on Nov. 3.

The late Benazir Bhutto’s Pakistan People’s Party (PPP) led by her widower Asif Ali Zardari and former prime minister Nawaz Sharif’s Pakistan Muslim League-Nawaz (PML-N), hold 87 and 67 seats respectively in the National Assembly. The Musharraf-backed ‘king’s party’, the Pakistan Muslim League-Quaid (PML-Q) is a distant third with 39 seats, prompting analysts to term the election results as a ‘referendum’ against Musharraf.

With no party having gained a clear enough majority to form government by itself, efforts are afoot to cobble together working alliances at the centre and in the provinces.

Some analysts hold that the judges can only be restored by a two-thirds parliamentary majority.

However, others say that the matter is as simple as "the new governments (at the centre and the provinces) announcing that they are lifting the illegal restrictions on the judges who refused to take oath under the PCO so that they can resume work, and removing administrative support for the judges appointed after November 3," Zahid F. Ebrahim, a Supreme Court advocate told IPS.

Aitzas Ahsan, recently elected president of Pakistan&#39s Supreme Court Bar Association (SCBA) and a senior PPP member who was active in the lawyers&#39 movement o reinstate the judges agreed. "It really is as simple as that. And it is the fundamental issue," he said, talking to IPS over the phone from his residence in Lahore where he is held under house arrest. Roads leading to the house have been barricaded off since he gave a press conference there with cricket hero turned politician Imran Khan who is also highly critical of Musharraf.

Observers believe that Ahsan would have swept the national assembly seat he was contesting. However, he withdrew his nomination under pressure from the lawyers, who advocated a boycott of any elections held without an independent judiciary. So too, did a coalition of opposition parties, including former cricket icon Imran Khan’s Tehrik-e-Insaf (Movement for Justice).

"If they say that only a two-thirds majority can restore the judges, then we are leaving ourselves open to any dictator walking in, declaring an emergency overnight, and changing the constitution," Ahsan explained. "The new government must print copies of the constitution without the amendments that Musharraf introduced."

Pre-election opinion polls had indicated which way the wind was blowing. The ebb in Musharraf’s popularity coincided with his suspension of Chief Justice Iftikhar M. Choudhry on Mar.9 last year. The move catalysed the lawyers’ movement led by Ahsan and others. Musharraf’s popularity dipped further in November when he imposed emergency rule.

Chaudhry&#39s campaign to get back into the court turned him into a national hero, wrote Ahsan in an article for Newsweek titled ‘Pakistan’s Forgotten Man’ (Feb. 8, 2008).

"After he was sacked, bar associations across the country invited him to speak. As he travelled the country, millions came out to receive him. Wherever he went, men, women and children poured out to cheer him on for having defied the increasingly unpopular general. Showing solidarity became a way to denounce the president. Ordinary citizens cheered Chaudhry with defiance in their eyes. I know – for I was his driver during this tour."

The Supreme Court restored Choudhry to office in July, but Musharraf’s imposition of emergency rule sent some 60 Supreme Court and High Court judges packing when they refused to take oath under a Provisional Constitution Order (PCO) rather than the constitution of Pakistan. Legally, no judge can be removed except through the Supreme Judicial Council. The bar councils do not accept those judges who currently hold office.

Ahsan and other leaders of the lawyers’ movement, like retired justice Tariq Mehmood and former Bar Council Vice Chairman Ali Ahmed Kurd have been in detention since Nov. 3 under colonial era laws. Munir A. Malik, another leader of the movement and former SCBA president, had to be released after three weeks in prison when he became critically ill.

Choudhry and five other judges of the Supreme Court remain under house arrest. Choudhry is held incommunicado in the capital Islamabad, forbidden to meet anyone or talk on the phone. Sharing these restrictions are his wife and youngest three children.

Bilaj, an eight-year old physically disabled boy has not been able to go for his monthly medical check up since November. Palwasha, 15, told the Guardian (Feb. 8, 2008) using a mobile phone that she has read and re-read the Harry Potter books, and fears she will miss her A-levels this summer. "I miss my studies and I miss my friends," she said. Ifra, 18, was not allowed to step out of the house to take her A-level exams in November. The government eventually allowed British Council officials to conduct the exam for her at home.

"It’s an outrage," Ahsan told IPS. "Can you imagine being shut in your house for months with three children who can’t attend school or even step out into the garden to enjoy the winter sun because there are police guards posted there? It is criminal."

Musharraf&#39s western allies have chosen to support the president while ignoring the chief justice and the other judges he cast aside. Congresswoman Sheila Jackson Lee wrote to U.S. Secretary of State Condoleezza Rice prior to the elections calling for "the immediate reinstatement of a legitimate and impartial judicial branch that is insulated from political consideration". The appeal elicited no response.

Washington’s most recent statement of support came from Rice who was reported saying: "The president of Pakistan is Pervez Musharraf … and so, of course, we will deal with him."

Britain, while calling for the release of all political detainees, maintains that it is "not our business to get involved in specific cases".

"Blind to the overwhelming support Chaudhry enjoys at home and abroad, Washington continues to pay lip service to the need for an independent judiciary in Pakistan while doing nothing to support one," wrote Ahsan in Newsweek.

"This strategy is dangerously shortsighted. The United States has every reason to worry about terrorism and instability in Pakistan. But allowing Musharraf to continue arresting judges and peaceful protesters will only strengthen the terrorists&#39 hand. If we lock up our judges and subvert the legal process, then those who believe in a more brutal kind of justice will triumph."

Ahsan told IPS that Choudhry’s morale remains high. "They are being very shortsighted," he added. "Sooner or later the new government will be installed, and they will have to let the CJ go. He will immediately resume office, and so will the other non-PCO judges."

Soon after the elections of February 18, when one of his own telephone lines was restored, Ahsan announced that if the new government did not restore the judiciary, the lawyers would embark on a &#39long march&#39 on Mar. 9, the first anniversary of the date on which Musharraf suspended Choudhry from office.

"This date is not set in stone," he told IPS later. "Obviously we must first let the new government be formed. But if it doesn’t restore the judiciary, the long march will happen.

"This is not a fight to be given up. Otherwise, no judge will dare exercise any independence, seeing what a horrible example Musharraf made of Chief Justice Iftikhar Choudhry," he warned. "No ordinary citizen will dare to dissent. We will become like the police states of Latin America in the 1970s."