'Judicial
Activism' Triggered Emergency Rule In Pakistan
By Beena Sarwar
04 November, 2007
Inter Press Service
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 many days," 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 disappearances.
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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