Judging Musharraf

Judging Musharraf
Tariq Hassan
Guardian, April 2, 2007
http://commentisfree.guardian.co.uk/tariq_hassan/2007/04/pakistan.html

In his recent memoir, General Pervez Musharraf, the commander-in-chief of the armed forces and self-imposed ruler of Pakistan, sought to create the perception that he was, as the leader of a front-line state in the war against terror, "In The Line of Fire". But the autobiography has turned out to be a self-fulfilling prophecy for the general, who has now actually landed himself in harm's way - and not under the pretenses of aiding the war against terror. Musharraf's recent troubles are the result of his vain effort to subvert the Pakistani judiciary, ahead of this year's elections, by suspending Chief Justice Iftikhar Mohammed Chaudhry of the Supreme Court, and then trying to correct his mistake by sending him on "forced leave".

Now, Musharraf is facing fire from within his own country. The legal community has unequivocally expressed outrage at the general for frivolously referring the chief justice to the Supreme Judicial Council - the legal body considers judicial misconduct cases - on charges that he misused his office. Legal scholars contend that the misconduct charges are intended to intimidate judges and undermine the independence of the judiciary: It is suspected that Musharraf feared Chaudhry might rule against him if he attempts to remain both president of the country and chief of the army. Although the referral is under private judicial consideration and cannot be discussed publicly, representatives of the legal community have unanimously demanded the withdrawal of the charges and reinstatement of the chief justice.

This is not the first time General Musharraf has illegally and improperly sought the removal of the head of an institution to fulfill his personal needs. He was instrumental in removing the statutorily-protected chairmen of the Federal Public Service Commission and the Securities and Exchange Commission of Pakistan - moves that I believe damaged both institutions. But because brute force happened to work in those cases, General Musharraf miscalculated in his move against the chief justice - and now must face the consequences. The effort to remove Chaudhry was the straw that broke the legal community's back: until now, many of Pakistan's lawyers had been begrudgingly putting up with the constitutional and legal infractions of General Musharraf.

Chaudhry's legal team is resisting the effort, and argues that the misuse of power charges should be withdrawn by the general or ignored by the Supreme Judicial Council. They also contend that it may be a vendetta against the chief justice for striking down a commercially questionable privatization deal (executed by Musharraf's friends), and for being a judicial activist - one who tended to expose the misdeeds of the general and his henchmen, no less.

There is a widespread perception among the public that the chief justice has done the nation proud by not giving in to pressure from General Musharraf. Both the legal community and the public at large stand behind him, and the protest movement launched and led by the lawyers is quickly gaining momentum. Various sections of civil society have taken to the streets in support of the movement - including students (even though the student unions are banned) and opposition political parties - even though the leaders of the two main political parties have been exiled, in contravention of all internationally-recognized legal norms.

The streets are resounding with chants of "go Musharraf go". But no one expects the general to retreat peacefully: Demands for his resignation are likely to be ignored. Consequently, Musharraf may face constitutional and legal challenges aimed at his ouster: As president, he does not have any extra-legal privileges under the Constitution, and certainly does not enjoy immunity from the legal process if he has violated the law.

Such legal challenges would be well deserved. The general and his cohorts have purportedly taken a number of actions that would warrant action by the courts. They could be individually and collectively responsible for allowing the surreptitious abduction of citizens; for handing over Pakistani citizens and foreign nationals to foreign powers without following the due process of law; for waging internal war on their own people in tribal areas; and for killing and exiling political opponents - all in clear violation of fundamental rights guaranteed not only by the Constitution, but also protected also by international human rights conventions.

No one can predict the outcome of this saga, but everyone expects the judges to take serious note of the judicial affront and uphold the integrity and independence of the judiciary. For the first time in the judicial history of Pakistan, judges have sought to register their displeasure with how such an issue has been handled: Several judges and government lawyers have even resigned in protest of Musharraf's moves against the chief justice.

The judiciary should take advantage of this opportunity and redeem the institutional honour lost during its submission to each successive military coup in Pakistan. And the Supreme Court would do well to consider adopting a sacrosanct policy - aimed at preventing the usurpation of political power by generals in the future - of holding declarations of martial law to be the fruit of a poisonous tree.

Although there is uncertainty in the minds of the people as to how this ordeal is going to end, there is nevertheless a realization that the general has gone too far. The people of Pakistan expect the restoration of the chief justice to his seat - as well as changes in the Musharraf regime. They may not accept any other result.