Musharraf's emergency upends Pakistan's courts By Nafisa Hoodbhoy
McClatchy Newspapers; Nov 30
KARACHI, Pakistan — A month after President Gen. Pervez Musharraf declared a state of emergency in Pakistan , the country's once-independent judiciary is in disarray and still under attack, making it unlikely that America's closest ally in the war on terrorism will have a functioning democracy anytime soon.
Police lines surround the principal courts, unfit judges are taking over the judicial apparatus and the enormous number of lawyers on hunger strikes has slowed the wheels of justice.
When Musharraf handed down his "Provisional Constitutional Order" on Nov. 3 , the federal Supreme Court was about to declare unconstitutional his plan to run for another term as president while remaining the army's chief of staff. Musharraf said he couldn't find a solution within the Pakistani Constitution, so he took "extraconstitutional measures," with the judiciary a prime target. "Some judges by overstepping the limits of judicial authority have taken over the executive and legislative functions," he said in the order.
Even though he's given up his post of army chief of staff, donned civilian clothes and promised to end the stat of emergency by Dec. 16 , Musharraf has said he won't reverse his takeover of the judiciary.
He put Iftikhar Chaudhry , the chief justice of the Supreme Court , under house arrest and demanded that all other judges swear under his order that they don't have the power "to make any order against the president or the prime minister."
Out of 17 Supreme Court judges, 12 refused to take the oath, a pattern that judges in the country's four provinces followed. Musharraf's military government has had to devise unusual ways to fill the vacancies. In Sindh province— whose chaotic capital of Karachi , population 15 million-plus, is Pakistan's biggest city— the process usually begins with a telephone call from military intelligence to leading lawyers, according to Sindh High Court lawyer Shaukat Hayat .
Sabihuddin Ahmed , who'd been the chief justice of Sindh, said he'd rejected "overtures" from the government to remain in his post because the army chief of staff wasn't allowed to issue emergency orders under Pakistan's Constitution.
When Sabihuddin stepped out of his home to drive to the Sindh High Court on Nov. 5 — two days into the emergency— he found police cars barricading his street.
The officer in charge was apologetic but told him that the police "were merely following orders."
The authorities quickly installed new judges who were willing to promise that they'd never challenge the president or prime minister, in some instances abandoning the usual appointment process and administering the oath "within half an hour," said Justice Majda Rizvi , a retired judge of the Sindh High Court .
Rizvi, the former head of the government's Commission on the Status of Women , was offered a ministerial post in Musharraf's caretaker Cabinet, but said she told the authorities, "I couldn't accept, after what you've done to the judiciary."
In other instances, the military has resorted to severe arm-twisting. In Sindh, where less than a third of the judges took the oath under the emergency, the intelligence agencies have taken the lead role in what critics say amounts to blackmail. Rizvi said government officials had even made use of files they kept on corruption cases pending against lawyers in Pakistan's National Accountability Bureau .
After Sabihuddin was ousted from his post as Sindh chief justice, the government hurriedly appointed three other High Court judges: Khawaja Naveed had been the advocate (attorney) general, Qazi Khalid an additional (assistant) advocate general and Rana Shamim an officer in a government institution before they took their oaths as judges.
Other lawyers in the Sindh High Court often have criticized the flamboyant Naveed— known for his cheerful smile and mop of curly hair— for his attempts at humor: giving a "thumbs up" sign and uttering phrases that television presenters use, such as "be back soon." Human rights groups aren't amused by a remark he made while presiding over a rape case: "Where was I?"
The biggest scandal surrounds the new chief justice in Sindh, Afzal Soomro . According to several former judges, Soomro was forced to resign as a judge from the Sindh High Court about nine months ago because of psychiatric problems. Justice Wajihuddin Ahmed , a retired Supreme Court judge, described Soomro as "mentally deranged" in a speech Nov. 14 before the Karachi Press Club .
Lawyers nationwide are astonished at the new appointees' lack of qualifications. The secretary general of the Sukkur High Court Bar Association , Shabbir Shar , said there was "anarchy" in the courts, since lawyers refused to appear before judges who were appointed under Musharraf's state of emergency.
Sindh Bar Council member Noor Naz Agha , released after 18 days of house arrest, said lawyers wouldn't rest until the emergency was revoked.
Still, economic pressures and the pressure by clients to get their cases resolved are slowly forcing lawyers to appear before the new judges. That's plunged the legal community into disarray.
Outside the Sindh High Court building— a British-built brownstone that still has its colonial grandeur— baton-carrying police seated under leafy old trees keep a vigilant eye out for protesters. Not long ago, the police had been there to protect the court. But after the new directives passed, police officers rounded up large numbers of lawyers and bundled them off to nearby jails. Most of them have been released now, according to the government.
Two streets away from the High Court is the Karachi Press Club . Military vehicles and police cars are parked outside, and plainclothes intelligence officials watch the movements of leaders. Every day there's a peaceful hunger strike by journalists outside the club. Inside, civil society groups hold protest rallies; street protests are put down by force.
The news media and the judiciary are being forced into a virtual alliance. Private television channels filming the "humiliating treatment" meted out to judges and lawyers have been blacked out, said Faisal Aziz , the secretary general of the Association of Television Journalists .
Meanwhile, the government's reconstituted Supreme Court , headed by Chief Justice Abdul Hameed Dogar , has dismissed petitions challenging Musharraf's eligibility to be president and has validated all his orders. A caretaker Cabinet will oversee parliamentary elections scheduled for Jan. 8 .
(Hoodbhoy is a special correspondent for McClatchy)