One year after the Emergency, the Chief Justice is still seeking justice
On the first anniversary of the Emergency declared by Pervez Musharraf, it is important to highlight, once again, the constitutional process through which a judge of the Supreme Court can be removed. The Constitution of Pakistan, in the Article 209(5), lays down the procedure through which a president or Supreme Judicial Council can remove a judge of the Supreme Court. According to the procedural rules laid down in the Constitution, if the president considers a judge "incapable of properly performing the duties of his office," the president can only "direct the (Supreme Judicial) Council to inquire into the matter." If the Council concludes that the judge is not suitable to stay in the office, only then the president can remove a Judge.
In the light of the Constitution, what Musharraf attempted in his camp office on March 9, 2007, by pressing the Chief Justice Iftikhar Muhammad Chaudhry, was illegal. The illegality of the situation was further compounded because the president was dressed in full military uniform. In other words, the illegal occupant of the highest public office was performing another illegal action by pressurising a legally appointed chief justice of the Supreme Court to submit his resignation. The audacity of the brute force was simply scandalous. And that is what it became. The refusal of the chief justice to submit to the logic of "political power flows from barrel of a gun" transformed the nation into an angry, pulsating and very popular movement for the primacy of constitutionalism. People were on the side of justice instead of raw power. The popular rebuke was daunting for someone who had occupied the office after removing a democratically elected government.
After deliberating the matter for several months, the Supreme Court (a 13 member bench) reinstated the chief justice into office on July 21, 2007. The rebukes for Musharraf were compounding rapidly. In the immediate "public" reaction to the decision, Musharraf announced that he would respect the decision of the Supreme Court. But that was part of the "image surgery" or "damage control" Musharraf needed because he wanted to continue to occupy the post of the president while he was still wearing a uniform. But the pro-constitution mask of the dictator came off on Nov 3, 2007, when he declared emergency and dismissed majority of the judges from the higher judiciary of the country. The word "emergency" was also deceptive because it was essentially an imposition of martial law. It was also described as Musharraf's "second coup." Ironically, the second coup was also against Musharraf the President (a civilian office) by Musharraf the General (the imposer of the Emergency). In the struggle between the sword and the pen, the sword had asserted its power. After the death of the dialogue, the monologue of power was asking the nation to shut up and listen. All the basic rights were suspended. The barbed wire cut short all popular paths -- both metaphorically and literally. Almost all those who protested against the Emergency, including hundreds of lawyers, were arrested. Because the Constitution was in abeyance, there was no hope for any due process for the incarcerated.
Students of elite institutions turned to the internet and started blogging against the Emergency. LUMS students started a clandestine online newsletter The Emergency Times. FAST National University followed suit with a blog called FAST Rising with others (Teeth Maestro, Pakistaniat.com, bloggers.pk etc) supporting. Soon there was a Student Action Committee. Writers developed new war names (noms de guerre) and started contributing to online blogs. A Critique Aggregator (a programme for presenting summaries of the most notable news items) appeared online and started disseminating the news directly submitted by the protesting lawyers. As popular TV Channels were taken off air by the government, people started relying on short text messages and the internet TV. The prices of dish antennae and satellite receivers increased manifold. The popular will tried all means possible to not submit to the gun.
The international community (except the United States of America) was on the side of the people of Pakistan. Netherlands froze all development aid to Pakistan and called the Emergency Rule as a "dramatic power grab." The governments of France, Sweden, Germany, the United Kingdom, and Norway expressed serious concerns about the suspension of basic rights and democratic and institutional processes. Musharraf also was rebuked by the Commonwealth as Pakistan's membership was suspended. In a rare laudatory move, Harvard Law School announced Medal of Freedom, its highest award, for the chief justice. Because previous recipients of the award included Nelson Mandela, Iftikhar Chaudhry was also being called "our Nelson Mandela" by some writers. The issue was galvanising democratic forces against the jackbooted trampling of popular will and it became difficult for Musharraf to continue the Emergency. On Nov 28, 2007, Musharraf removed his military uniform and on the 15th of Dec he lifted the Emergency Rule as the President of Pakistan.
One year onwards, many people are of the opinion that democracy is back in Pakistan because of the "No" of the chief justice of Pakistan, who still has not been able to return to his office. The recent overwhelming victory of Ali Ahmad Kurd in the elections for the president of the Supreme Court Bar Association against the government-backed candidate Muhammad Zafar indicates that the issue of justice versus raw power is still simmering in the minds of many and will continue to haunt the politics of Pakistan for many years to come. The image of a policeman pulling at the hair of the chief justice, the barricaded Constitution Avenue in Islamabad, the fiery speeches of the lawyers who have kept the movement alive and the tear-gas shells landing in the building of the Supreme Court are not easy to erase from the popular memory.
Intimately linked with all these images is the issue of the supremacy of the law and the proper functioning of public institutions. If democracy and prosperity are desired, rational transactions and trust have to be made more readily available to all.
Published in The News on Sunday
dated November 02, 2008