The Root of the Legal Crisis in Pakistan and What it Means

Abstract: The paper explores the atest crisis facing Pakistan, the suspension of Chief Justice Iftikhar Chaudhary by President Musharraf. The author holds that the crisis may lead to serious problems for the survival of the Pakistani state, especially as the country heads towards Parliamentary and presidential elections. The author concludes that the international community must put more pressure on Islamabad to reform and adopt democratic practices otherwise tensions will increase to the detriment of all.

Pakistan is in the midst of a deepening crisis caused by President Pervez Musharraf’s decision to suspend Chief Justice Iftikhar Chaudhary on the charge of misconduct. The crisis, however, has metamorphosed to become a referendum over Musharraf’s presidency, the development of democracy and the rule of law in Pakistan and ultimately, the military’s role in Pakistani society, especially with rumours circulating that martial law or emergency law is being considered by the government due to rising dissent. The Daily Times, the leading newspaper in Lahore, recently declared in an editorial, “The possibility of any compromise to correct the original mistake of removing the CJP [Chaudhary] has vanished now. The ante has been upped by the government.”[1] It seems that with every passing day the crisis intensifies, as seen with the mysterious killing of Syed Hammad Raza, a senior official at the Pakistani Supreme Court. Raza reportedly was close to Chaudhary, which raises the question as to whether someone was trying to send Chaudhary a message.[2] Moreover, since the outbreak of the crisis, there have been clashes between pro- and anti-government forces, with each side becoming more entrenched in their positions, thus reducing the likelihood of a compromise as people invest too much in the situation and make demands from which they cannot back down. The current clashes add to the already fragile nature of the Pakistani state, which is threatened by rising Islamic conservatism (largely located in the tribal areas, but slowly moving to the centre, as seen with the recent Lal Masjid (Red Mosque) crisis), ethno-nationalism (especially in Balochistan) and the omnipresent military, which refuses to relinquish its iron-tight control over Pakistani society. [3] Each groups places different demands on the Pakistani state, adding to its weakness and fragmentation.

Pakistan is bracing itself for its Parliamentary elections this year, which would be followed by presidential ones next year. These elections will be monumental, as Pakistan will need to come to terms with the different forces that operate within the state: the Islamic conservatives, ethno-nationalists, urban middle class, tribal areas and the military. The elections would determine the immediate and long-term future of the country, especially if the radical Islamic parties (Muttahida Majlas-e-Amal – the United Action Front) triumph. Such an event would influence Pakistan’s role in the ‘war on terror’, as an Islamic-led Pakistan is unlikely to be as supportive of the U.S. as the Musharraf regime has been to date, which may explain why the White House has been relatively quiet on Musharraf’s tenure and style. Put simply, despite his many faults, the White House is reliant on Musharraf and it knows what it gets with the former commando.

Musharraf has used a pliable Parliament to pass various legislations as part of his reform program, largely because Parliament passed the 2004 Hold Two Offices Act, enabling him to continue to serve as President and Chief until 2007. Worryingly, Musharraf may also use the controversial 2002 Legal Framework Order to postpone the elections, as the Order allows for constitutional amendments without Parliamentary oversight. He may opt for this action because he is increasingly concerned with protecting the military’s pre-eminent position in Pakistani society, especially as the military is facing mounting criticism over its excessive control of Pakistani society.[4]

The Legal Framework Order also allows Musharraf to dismiss unilaterally provincial and national assemblies, which are vital for the general elections and the governance of Pakistan because of the local power that the assemblies wield. After all, Pakistan is a highly fragmented and divided country, with tremendous animosity between the different provinces, due to tribal, ethnic religious (Sunni / Shiite) and economic divisions.

The widespread belief is that in the forthcoming elections Musharraf would have taken an electoral beating if he was to lose his official military position, as his connection to the military affords him tremendous power. Imran Khan, the former Pakistani cricketer turned-politician, claimed: “Without a uniform, Musharraf would not manage to win a single seat in Parliament.”[5] Overall, Musharraf if he feels that his position is weak in the polls may seek a way to postpone or manipulate the elections, something that he has already done in previous elections when he barred Bhutto and Sharif from campaigning.

President Musharraf suspended Chief Justice Iftikhar Chaudhary on March 9, 2007, on the charge of abuse of power and impropriety relating to Chaudhary’s son joining the police force despite failing the English language exam (nepotism). The other allegations thrown at Chaudhary, relate to abuse of travel privileges (abuse of power). Chaudhary is to face a judicial commission composed of fourteen Supreme Court Justices, which will investigate the allegations. In a country that Freedom House rates as ‘not free’ (Pakistan received a rating of 6 in terms of political rights and 5 in civil liberties, where 1 is free) and where there is widespread corruption (political, electoral and bureaucratic), such allegations against opponents of the regime are commonly used to remove those who threaten the ruling elite. Musharraf has proven very recalcitrant over Chaudhary, which has kept the crisis going. He has refused to consult Parliament claiming, “We cannot consult everyone. We took the decision after looking into it in detail.”[6] Musharraf and Prime Minister Aziz repeatedly claim that the matter needs to be resolved by the Supreme Court Judicial Council, the problem however is that there is little faith in the Council due to various allegations against some of the Justices.[7]

Opponents of Musharraf claim that the real reason behind Chaudhary’s suspension was Musharraf’s fear that a Chaudhary-led Supreme Court would prevent him from retaining his position as Chief of the Army and running for President in 2008. They point to an address given by Chaudhary in February 2007 to trainee military officers, in which he stated that, in his opinion, Musharraf could no longer hold both offices at the same time.[8]

Critics also contend that Musharraf wanted to remove Chaudhary because under Chaudhary, the Supreme Court has been active in questioning the role of the military in Pakistan. The military and the furtive Inter-Service Intelligence (ISI), have imprisoned thousands of Pakistanis as part of the ‘war on terror’, without any due process. Chaudhary increasingly challenged this approach, and he refused to accept the Interior Ministry’s inaction over missing people files (“forced disappearance” cases). He demanded that the Attorney-General investigate the claims, leading to the return of some missing people. Chaudhary also drew criticism from a ruling that prevented the sale of the state-owned Steel Mills to a private consortium, due to allegations that kickbacks were involved. Opponents claim that by removing Chaudhary from the bench, the ruling elite guarantee a more pliable Supreme Court, which would support the government rather than challenge it.

The demonstrations pose a major threat to Pakistan because it unites Pakistani liberals and secularists with pro-Taliban and Islamists, at a time when conservative Muslims are becoming stronger in Pakistani politics.[9] Benzair Bhutto noted the ideological difference between her Pakistan People’s Party and Muttahida Majlas-e-Amal, (a body composed of six very religious parties), the two were united in the campaign for judicial independence.[10] The President of Muttahida Majlas-e-Amal, Qazi Hussain Ahmed, went so far as to claim that Chaudhary’s suspension threatens the independence of the judiciary and is part of a larger policy of Pakistan deference to Washington. Ahmed declared “In order to please the West and the USA, the government had defaced and weakened the whole fabric of the society, violated the constitution, taken extra-constitutional steps and had virtually imposed a one-man rule by setting up the National Security Council, making the Parliament a rubber stamp and the cabinet powerless.”[11] In other words, for the Muslim conservatives, Washington wants Musharraf in power because he is Bush’s puppet and is willing to engage Muslims on behalf of the Washington’s ‘global war on terror’, which Pakistani conservatives see as a war against Islam.

As government opposition intensifies, pro-government forces are also coming out to the streets, with the two sides clashing often violently, forcing Islamabad to send out paramilitary troops and rangers to Karachi and Lahore to quell rising tensions between pro- and anti-government demonstrators. The May 12 incident in Karachi has led to calls in the National Assembly and the Senate for Musharraf to go, as opposition members claimed that Musharraf and the Muttahida Qaumi Movement (MQM) were responsible for the deaths that occurred.

The other significant consequence of the Chaudhary crisis is the attempted political return of Nawaz Sharif, the man Musharraf not only deposed but also exiled. Sharif, operating out of London, appears to be steering the conservative Pakistan Muslim League towards the quasi-religious conservative camps. He is aware that the only place that he could muster support or forge an alliance is with the conservative Islamic groups, as Benazir Bhutto has a wide appeal with professionals and moderates and seems more willing to work with Musharraf’s party the MQM. Sharif has been making statements condemning Musharraf’s willingness to join the ‘Coalition of the Willing’ in the global war on terror, declaring that Musharraf should have “consulted Parliament and the people”, prior to supporting the American invasion of Afghanistan. Sharif is increasingly worried that Bhutto will strike a deal with Musharraf that would facilitate her return to Pakistan and possibly to power, despite the alleged alliance that Sharif and Bhutto struck in London in 2006, not to have any ties with Musharraf.[12]

Opposition to the government is rising by the day with lawyers and the media feeling the pinch, as the government attempts to stifle opposition. There are rumours that the Chief Justice of the Lahore High Court has taken action against judges who attended Chaudhary’s speech at Lahore. The media has had it much tougher, as it increasingly challenges the government and consequently there has been an increase in the number of attacks on the media. According to the Annual State of Pakistan Media Report (2006-2007), five lawyers have died and 17 were arrested or detained, while countless others have been injured in pursuit of stories. Recently, three Pakistani journalists working for foreign press agencies, received anonymous letters each containing a bullet; journalists’ groups claim that the letters came from a group with ties to the Muttahida Quami Movement, raising concern of government attempts to stifle journalists critical of the regime.[13]

Pakistan is at a critical juncture in its development. The debate over Chaudhary’s suspension is merely the latest in a long list of crises. This raises concerns that Musharraf is losing control over the country, at a time when there is growing tension along the Afghan-Pakistan border, which has implications not only for the stability of the two countries but also on the ‘war on terror’. Eight years have passed since Musharraf assumed power in a bloodless coup but instead of cementing Pakistan and dealing with its internal issues, Musharraf is making enemies across the country. Musharraf is alienating the various Muslim movements with his close relations with the White House and his ‘Enlightened Moderation’,[14] he has angered the professionals with the suspension of Chaudhary, and he has disappointed the poor with insufficient economic progress.[15] Musharraf needs to ensure that he keeps up his reform program, which has encouraged the liberalization of the Pakistani economy (it has grown annually by around 7% since 2000), improvement of women’s rights and trying to tame the ubiquitous religious organisations (he has banned some militant Islamic groups such as Lashkar-e-Tayyaba (Army of the Pure)). At the same time, Musharraf and Washington, which has provided the Pakistani President with resolute support – verbal and physical in the shape of aid – since the beginning of the ‘war on terror’, must appreciate that Pakistan must change its system of governance. Washington will increasingly challenge the presence of a benign dictator (military ruler)[16] and eventually it will end its support,[17] as the U.S. has shown itself in the past to be willing to end or weaken its ties with Pakistan when Islamabad appears to threaten international peace and security. The strong-arm tactics used by the military and the security services ensure that Pakistan remains a major focus for members of the human rights brigade, which may compel Western politicians to demand a revision in the way Pakistan is treated by the international community. Put simply, there will come a time, when the West could no longer ignore Pakistan’s dreadful human rights record.[18] Ultimately, Musharraf and the military must adapt to a new reality in which the armed forces become servants of the civilian establishment.

The most worrying thing about the current crisis in Pakistan is the White House position, which has remained very silent on the Chaudhary crisis, as it seems that the White House feels that Musharraf is America’s best hope for the region and Pakistan. Washington has chosen to ignore many of Musharraf’s failures and the increasing fragmentation of Pakistan caused by Musharraf’s policies. Unfortunately, under Musharraf, Pakistan is increasingly coming apart at the seams, as seen by the killing of Nawab Akbar Bugti in August 2006 by Pakistani security forces, which exacerbated the already tense situation in Balochistan.[19] Musharraf seems to have lost his way in that his agenda nowadays appear more focused on retaining the military’s position in Pakistani society rather than improving the country’s health and well-being. Washington needs to encourage Musharraf, and other leading Pakistani politicians, to refocus their energy not on protecting their power bases, but to unite against the Islamists and conservatives.

The current crisis over Chaudhary, emphasises that Pakistan strives to have Parliamentary democracy, where the rule of law and an independent judiciary are not only respected but also upheld. The willingness of traditional opponents to cross the ethnic and political divide in their campaign for an independent judiciary, strengthen the cause for democratic development in one of the most crucial states in the ‘war on terror’. However, the concern is over the length of the crisis as the longer its runs, the less likely are the different players to compromise, especially as they forge ‘unholy alliances’, as seen with the secularists and religious conservatives. Musharraf must ensure that the elections occur on time and are fair and just, as anything else would provide the Islamic militants with ammunition to strike at the Pakistani state, which is already under attack, as Pakistanis feel increasingly disenchanted with a state that fails to provide security and socio-economic development.[20] The militants use the failures of the government to promote recruitment and encourage Pakistanis to identify more with Muslim umma (community) than the Pakistani state.