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Saturday, November 03, 2007

POLITICS-PAKISTAN: 'Judicial Activism' Triggered Emergency

POLITICS-PAKISTAN: 'Judicial Activism' Triggered Emergency Analysis by Beena Sarwar

KARACHI, Nov 3 (IPS) - By taking a stand on crucial constitutional issues, implicit in cases before it, the Pakistan Supreme Court may have raised the political temperature to a point where, in order to remain in power, President Gen. Pervez Musharraf felt compelled to declare emergency on Saturday.

Rumours of an emergency had been persisting for several days, but on Saturday evening private television news channels were taken off the air and the state-run Pakistan Television (PTV) announced: `'The Chief of the Army Staff (Musharraf) has proclaimed state of emergency and issued provisional constitutional order (PCO).''

According to various sources, judges of the higher judiciary were asked to take a new oath under the provisional constitutional order (PCO) -- which a bench of the Supreme Court bench rejected.

The court ruled that no judge and chief justice of the Supreme Court and High Courts could take oath under the PCO and that no civil and military officials could abide by any order of a government that went against the constitution or the law. The prime minister and the president were made parties in the ruling.

Soon afterwards, troops entered the Supreme Court building and 'escorted' Chief Justice Iftikhar Chaudhry out, his services `terminated'. The president of the Pakistan Supreme Court Bar Association (SCBA) Aitzaz Ahsan and other members of the influential lawyers' body were also arrested.

The PCO, read out on PTV, squarely blamed the judiciary for the imposition of emergency rule and accused it of interfering with the fight against Islamist militancy. "Some members of the judiciary are working at cross purposes with the executive and legislature in the fight against terrorism and extremism, thereby weakening the government and the nation's resolve and diluting the efficacy of its action to control this menace,'' the order said.

But this only reinforced the general impression that the emergency had been declared in order to keep Musharraf in power. Talking to television channels on a mobile phone, from the restroom of the police station where he was detained, Ahsan termed the emergency and the suspension of the Constitution `illegal'.

The Supreme Court is seized of a slew of petitions likely to have far- reaching implications on Pakistani politics -- including the validity of Musharraf holding the dual offices of president and army chief. Musharraf's term as president expires on Nov. 15.

After Musharraf pledged to quit the army, before starting a new presidential term, the court in a short order dismissed these petitions as "not maintainable" and allowed the presidential elections to be held on Oct 6 as scheduled -- although the results could not be announced until the final verdict. This in effect allowed Musharraf to contest the presidential elections while remaining army chief.

The final verdict has been expected for some time, but the hearings kept getting delayed. "This is not a matter that should take so manydays," said eminent jurist and former High Court judge Fakhruddin G. Ebrahim, talking to IPS on Friday.

The delay has been attributed to the great pressure the judges were obviously under. Musharraf's refusal to say whether he would accept a negative verdict from the court also fuelled rumours of emergency rule or martial law. "Musharraf is behaving like a bad loser as the decision was not going to be in his favour," said Ahsan.

Until about a year ago, `judicial activism' in Pakistan was largely limited to taking notice of human rights cases involving, for example, violence against women. But in terms of politics, this activism traditionally validated undemocratic actions rather than striking them down, commented Anwar Syed, professor emeritus of political science at the University of Massachusetts, United States.

The military has staged several coups, seized the government, abrogated the Constitution or put it in abeyance (1958, 1977 and 1999). In addition, various presidents dismissed the National Assembly (1988, 1990, 1993, and 1996). The judiciary validated these situations by invoking the `doctrine of necessity', which was not a part of the law, but "a rationale for evading or defeating the law. Resort to it is, therefore, clearly an exercise in judicial activism," commented Syed.

Democracy advocates argue that this doctrine should be buried and the judiciary under Chaudhry appeared inclined to agree.

The Supreme Court has been playing an increasingly pro-active role over the last year, starting with the cases of enforced disappearances that have been rising alarmingly since Pakistan became a partner in the U.S.-led `war on terror'. The media has been supportive to this process.

In July 2006, Pakistani journalists working for the BBC Urdu service initiated a ground-breaking special debate on Pakistan's `disappeared'. Held in the capital Islamabad, the debate included several government officials and families of the disappeared.

"In effect, this broke the silence around the issue," said Mazhar Zaidi, a producer with the BBC in London who was involved in organising the event. "Once a powerful international media
organisation takes notice of something, local journalists feel safer taking it on." The local media had held back due to fear of the powerful intelligence agencies that were behind most of these

The greater openness generated public awareness and facilitated collective action by the families. When two of the affected families filed a petition in Aug. 2006, seeking information on 41 missing persons, the Supreme Court took the matter seriously. Many individual petitions were also filed. The independent Human Rights Commission of Pakistan in February 2007 filed a joint petition seeking information on 150 missing persons.

The court's pro-active stance shook up the intelligence agencies and led to the production of several missing persons in court.

"The Chief Justice took an excellent stand in the missing persons case," said lawyer Fakhruddin G. Ebrahim. "Every time a person was found, the court said this is not good enough. When was this person picked up and why? They were pushing for accountability."

Political analysts speculate that this contributed to Musharraf's decision to `suspend' Choudhry in March this year.

But this, in turn, catalysed a four-month-long `lawyers' movement' that came to symbolise Pakistan's long struggle between constitutionality and military rule. The stand-off ended in July when a full bench of the Supreme Court reinstated Choudhry. The court then returned to the cases of the disappeared with renewed zeal.

Another case that analysts saw as forcing Musharraf's hand relates to exiled, twice-elected, former prime minister Nawaz Sharif who has filed a petition on the question of his right to return and participate in politics.

The Supreme Court upheld his plea on Aug. 23. When the government bundled the Pakistan Muslim League party leader back to Saudi Arabia within hours of his landing in Islamabad on Sep. 10, his lawyers promptly filed a contempt case against a long list of respondents for
violating the court verdict.

The hearings soon falsified the government's claims that Sharif had left `voluntarily', bound by his `agreement' with the Musharraf government soon after the military coup of 1999. As the truth began to unravel, Sharif's unceremonious departure emerged as part of a long-standing plan initiated at the highest level.

The apex court was also reviewing a petition regarding the National Reconciliation Ordinance (NRO) that President Gen. Musharraf promulgated on Oct. 5 a day before the presidential elections. The NRO cleared the way for another former twice-elected prime minister, Benazir Bhutto, to return to Pakistan without being arrested for the corruption charges she faced after being ousted from power in 1996.

Bhutto has been criticized for this `deal', in exchange for which her Pakistan People's Party legitimised Musharraf's presidential candidacy by abstaining from the vote. The opposition boycotted the proceedings in protest at Musharraf's nomination as President while still army chief.

Another case relating to fundamental rights was that of police brutality on lawyers and journalists outside the office of the Election Commission in Islamabad when the presidential nomination papers were being filed on Sep. 29. The main TV channels broadcast the beatings in graphic detail. The court's suo moto notice of the incident resulted in the suspension of the top police officers involved.


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