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Thursday, May 3, 2007

Tuesday, May 01, 2007

Tuesday, May 01, 2007


The so-called judicial crisis is no more than a crisis of governance where military commander rushes to get rid of a meddlesome judge in a ham handed manner. It all started when the Chief Justice was summoned to the Army House where the Chief of Army Staff in full regalia browbeat the Chief Justice to resign. He kept him in wrongful confinement for about five hours during which time an Acting Chief Justice had been sworn in. The Chief Justice was then allowed to leave but not for the court but only for his house which was transformed into a high security prison crawling with security men all over. Outside access was denied to all the inmates including the family of the Chief Justice. His children could not go out or go to school or college, cars were fork lifted, gas was interrupted and untold miseries visited upon the hapless Chief Justice. All because he had refused to resign as demanded by the COAS

Such a thing is unprecedented even in the checquered history of Pakistan. Judges have been removed in much larger number including the Chief Justices. Even during Musharraf's time half the Supreme Court was sent packing with Chief Justice included, because they had refused to take fresh oath of fealty to a non-constitutional military dictator.

What is new and novel in the latest saga is the defiance by the Chief Justice of the military commanders orders. Our judges have with few honourable exceptions always bowed before the authority and legitimized the most illegitimate governments. And yet here was an unlikely individual who showed steel courage to say "No". To a large number of people who know the Chief Justice this defiance would appear to have been unlikely. But then God has endowed qualities on humans that others may fail to see and which only a crisis can cause to appear.

The Chief Justice was allowed to emerge for the first time only for going to the court to appear as a respondent to answer charges leveled against him by the Chief of Army Staff. The unhappy episode involving humiliation of the chief Justice and his family at the hands of state minions followed. Suddenly the sad occurrence of 9th March took on more ominous aspect particularly for the political hotchpotch masquerading as government. Everyone saw the Chief Justice disgraced on the television and read about it in the newspapers. The Chief Justice defiantly refused to be accompanied by security personnel in his official car and chose to walk to the court. He was himself surprised to see an outpouring of anger amongst the legal community. Entire legal community had converged on the Supreme Court to welcome him. Such spontaneous response to the plight of the chief Justice and the judiciary gave greater resolve to the Chief Justice to withstand the odds.

The politicians of this country who have been either conspiring with the government or sitting in its lap had failed the people in their realization of democratic rights. Quite surprisingly the members of the bar provided the much lacking leadership with a Chief Justice as a rallying point. The rulers asked if the people are un happy why aren't they coming out on the roads. The answer is for want of leaders who can galvanize them. Their prayers have now been answered. Now they are complaining that the issue should not be politicized. But why not? If you are in politics why depoliticise the society?

This crisis of governance relating to the judiciary has unfortunately for Genreal Musharraf coincided wit a far greater national crisis taking place in the precincts of Lal Masjid in Islamabad. Mullah Military nexus for denying the people their democratic rights has become a cliché for being so obvious and therefore the situation presents a deep dilemma to General Musharraf as what to do about it. If he does not act, Lal Masjid presents a blatant defiance to his authority, the writ he so fondly claims to establish either in Balochistan, Dera Bugti, North Waziristan or Bajau or wherever. He is between the devil and deep see. If the Mullahs are the bulwark of Military support, then it will be imprudent to launch an assault on their stronghold; but if he does not act, rest of the civil society and particularly the outside world would look askance. In case he is forced to use force, with unintended consequences, then the crisis of governance n the judiciary will combine with the latest crisis to throw his scheme of things in turmoil.

The crisis caused to the judiciary will not die down peacefully. The members of the bench and the bar have combined to sustain the movement until they achieve their objective of restoration of rule of law involving the absence of the military from civil affairs. If the crisis prolongs, the cost paid by the country will be higher. In the short run if General Musharaf decides to give in, the crisis may resolve peacefully. But that is extremely unlikely. Generals even good Generals have limited experience of beating a retreat. Taking the reference back because it is patently illegal, will compromise the 'standing' of the General in the Military. And it will not be in character either. Therefore, the crisis will have to run out its course.

Despondency is all over. I asked a Senior Manager in a bank as to how he felt of the political situation. He said that he never felt so low in spirits. For how long as he had that feeling, I asked. He answered for the last three four years. And he saw no hope of any change although he hastened to add that it is sin to feel despondent. Civil service has never been so demoralized and ordinary citizen faces the prospects of hopelessness. Pakistan Steel Mill has closed down for the first time in life for want of maintenance and poor management.

Headlines of the newspapers and private TV channels leave no room for a cheery feeling. Crime and incidents of terrors are a daily fare. The issues of political change have been relegated to a secondary position. Whether the President needs a vote of confidence or has to go for reelection in 2008 having been endorsed by the Electoral College (the National Assembly, the Senate and the Four Provincial Assemblies) in 2003 or is he up for reelection during this year, having been elected in 2002. Another question is can the present assemblies reelect him before they are dismissed into oblivion? Important point to consider is not the illegality or the constitutionality of the whole proceeding. Any bright lawyer, of which there is no dearth, can advise of a loop hole in the law to make the wishes of the rulers come true. The whole exercise is an effort to seek legitimacy. No dictator in Pakistan history has ever succeeded in achieving that aim in spite of referendum, vote of confidence or rigged election.

If it lasts for two, three or more months Army may be forced to reconsider its options and may come to regard General Musharaf a liability. In that case it may decide to nudge him to leave and that would provide for a peaceful resolution of the crisis. And the restored Chief Justice will emerge as a very strong organ of the Government. That will be for the good of the institution not only of the judiciary but entire governance.

It is foolhardy to forecast events in Pakistan. In the United States one knows the date on which the next President or the President after that will take oath of office. Not so in Pakistan. The opposition is in disarray. Not that it has been rock solid in its unity except for once when it opposed Zulfikar Ali Bhutto in 1977 and brought down a long pernicious military rule of Zia ul Haq. Barring some major accident, we the disenfranchised people of Pakistan are condemned to continue to bear the burden of some one else's sins for the foreseeable future. But it is fairly certain that this is an end of this era. (
Syed Shahid Husain
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