JURIST Contributing Editor Ali Khan of Washburn University School of Law says that the suspension of Pakistan Chief Justice Iftikhar Muhammad Chaudhry has pushed the country's lawyers and top judge into an unprecedented confrontation with the executive power of President Pervez Musharraf...
The sight of a "strong and honest" Chief Justice leading the nation's lawyers to oust a military ruler who seized power by removing a democratically elected government makes a fabulous story. The story is even more engaging because the national Parliament elected by the people is playing dead. And the two popular leaders (former prime ministers Nawaz Sharif and Benazir Bhutto) who could have led the masses in this urgency live happily in exile.
The Parliament's failure to mediate the crisis has forced lawyers across the nation to stage a mutiny against what they call "the usurper of the ship," President Pervez Musharraf. The lawyers are hoping that Musharraf and his crew will jump ship and float away, perhaps to bountiful America.
A senior Supreme Court advocate in Pakistan tells me that this is the first time in Pakistan's history that lawyers have dropped their conflicting political affiliations and forged an unprecedented professional unity to restore the rule of law. More than 80,000 lawyers are acting in solidarity to challenge arbitrary powers that the President exercises on a regular basis with no constitutional authority. The suspension of the Chief Justice on March 9 was the President's most blatant act to intimidate the judiciary. The edifice of law cannot stand and the state cannot survive, says the senior advocate, when the President wearing the uniform of the Army Chief summons the Chief Justice of Pakistan (CJP) into a military camp, grills the CJP in the presence of others including some generals, and then orders his suspension. This Presidential vaulting, I am told, is too much for the lawyers to let stand.
In his petition to the Supreme Court challenging his suspension, the CJP paints the picture of an arrogant President who humiliated his person and his office - "crimes" tantamount to "the subversion of the Supreme Court." On summoning the CJP on March 9, the petition discloses, the President "fervently persuaded him to resign" and made a good many offers to sweeten the forced resignation. The President was "most upset" when the CJP refused to resign. A chain of punitive events followed. The CJP was first detained and prevented from leaving the office for several hours. Later, the CJP and his family were falsely imprisoned in their house. The telephone lines and television connections were cut off to isolate the CJP from the world. Even the Supreme Court brethren could not visit him. The CJP's cars were fork-lifted from his residential premises. On the order of the Supreme Judicial Council, which met the same day in "unholy haste," the CJP's entire staff was taken into custody, harassed, and interrogated. "What was the purpose," asks the CJP?
These stories have stirred many of Pakistan's lawyers into hard action. The lawyers are protesting in the streets to mobilize a popular uprising against the President. They are making it difficult for the Parliament to grant another five years term to the President. They are petitioning the Supreme Court to force the President to leave even earlier.
Despite an engulfing wave of discontent in the legal profession, a few lawyers do support the President and argue that Musharraf is no tyrant. As a former commando, they say, Musharraf can handle tough assignments. As the President, he is a soft dictator who welcomes (manufactures) testing events to display his power and pragmatism. The Pakistani press, including television, has enjoyed more freedom under his soft authoritarianism than any other time since the creation of Pakistan. The opinion makers and newspaper editors freely trash his policies without hearing a knock at the door in the middle of the night.
Even in the face of killings in Karachi associated with the Chief Justice's failed visit to the city, the President has refused to declare an emergency and suspend fundamental liberties, including the freedoms of speech and association - the rights that empower the lawyers to join hands and protest. The idea of soft dictatorship, perhaps the invention of his legendary legal advisor S.S. Pirzada, has worked well for eight years in lulling the people into political slumber.
While the people and the Parliament are still unsure what to make of the crisis, the lawyers have pooled their resources to fight for a distinct legal objective -suspension annulment.
Pakistan's leading lawyers are seeking the annulment of the CJP's suspension. Soon after the suspension, there existed a small window of time in which the President himself could have undone the worst mistake of his rule. That option is no longer available. Twenty-three constitutional petitions have been filed with the Supreme Court, including the one by the CJP, challenging, among other things, the President's reference under Article 209 of the Constitution against the CJP, the formation of Supreme Judicial Council, and sending the CJP on forced leave and restricting his movements. A larger bench of 13 Justices has been established to rule on these petitions.
The CJP's suspension is indeed the most critical constitutional issue. Article 209 empowers the President to form an opinion on information received from any source that a Supreme Court Judge is incapable of performing the duties of his office or is guilty of misconduct. The President may direct the Supreme Judicial Council to inquire into the matter. Article 209 also provides procedures for the Supreme Judicial Council to conduct a hearing and report to the President that a Supreme Court Judge may be removed from office. Article 211 vests exclusive jurisdiction in the Supreme Judicial Council to decide the removal matters and bars "any court" from calling into question the Council's proceedings, its report to the President, or its recommendation for the removal of a Judge. These provisions seem to support the President's authority to initiate an action against a Supreme Court Judge. Nonetheless, Article 209 contains enough breathing space for the Supreme Court to find procedural loopholes and declare that the President acted without constitutional authority in suspending the CJP.
If American realism is any guidance to court behavior, one may safely predict that the Supreme Court will annul the suspension and restore the CJP to office. This outcome is most likely because the lawyers of Pakistan will not be content with anything less. Furthermore, a Supreme Court Registrar has been murdered. The pro-government media have launched a campaign to malign some Justices of the Supreme Court in attempts to undermine the Court's credibility. In view of these facts, the Supreme Court is psychologically predisposed to act in self-defense and will annul the President's reference.
The annulment is most likely to occur, however, because the constitutional petitions are not about the hermeneutics of Article 209 but about a colossal struggle between two primary institutions of Pakistan, the Armed Forces and the Judiciary. Since the creation of Pakistan in 1947, the Supreme Court has sided with the generals who overthrew political governments. The Supreme Court found innovative ways to legitimize military coups, including the one Musharraf staged in 1999. In all these constitutional cases, however, the fight has been between two governments, the military and the political. This time, the fight is between the Judiciary and the Armed Forces. This time, the Judiciary itself is under attack. It is unlikely that the Justices will subordinate themselves to the Generals. In his petition, the CJP prays the Court to annul the President's reference and raises a question that cannot be lightly ignored: "If a contrary view is taken, which judge will then stand up to the executive?"
Ali Khan grew up in Pakistan and is a law graduate of Punjab University, Lahore. He is currently a professor at Washburn University School of Law in Kansas. His publications are available here.