May Issue 2007

The arc of judicial crisis, which came about when President General Pervez Musharraf sought to bustle out Supreme Court Chief Justice Iftikhar Muhammad Chaudhry on March 9, now stands across the entire length and breadth of the country. Abroad, its looming shadows have blackened Pakistan’s image; at home it silhouettes the slow unraveling of the entire system that the present regime had pieced together with much legal sophistry.

While the hearings of the presidential reference against the chief justice are continuing and the larger Supreme Court bench is already in place to take up the chief justice’s petition challenging the proceedings on no less than 132 counts, public debate has already overtaken the slow-moving legal wheels. The chief justice is wallowing in the glow of an unprecedented public prestige and support, whose main base is the legal community and whose most unmistaken manifestation are the lawyers.

Blistering heat and the boring rituals of Supreme Judicial Council (SJC) hearings have not dissuaded his supporters from gathering in the thousands in front of the Supreme Court to greet and receive the chief justice, whose tale of resistance against the attempt by top military brass to extort a resignation has become a folk tale that feeds its own legend.

But even with his peaking popularity, Chief Justice Chaudhry does not pose a personal threat to the system. He is not General Musharraf’s replacement; nor is he an alternative to the crop of leaders — all variety — who hold serious sway over national politics. At best he is a chief justice who spoke a two-letter word that Pakistan’s judges often forget in the company of generals: no. At worst, he is a chief justice who, till March 8, was seen as part of the country’s constitutional mess and drew the ire and ridicule of his present-day die-hard supporters.

The threat to Musharraf’s system comes not from himself but the process that he has touched off. He has cut open the stable of a million bolting horses, creating a stampede of troubles for the generals, the ruling party and even his brother judges.

Take the generals first. Good at managing tough challenges behind closed doors, they are confronted with an impossible public situation. “The lawyers are provoked and are looking for martyrs and we in the establishment do not want to give them that,” says a close aide of the president who is involved in the making of operational policies dealing with the lawyers’ protest. This restrained approach is also born out of a stark realisation that the lawyers are very organised and can create a cataclysmic situation in the country in case force is used to counter their mounting pressure.

But a free hand to the lawyers mocks the power of the ruling military elite. Each protest rally sees loads of scorn heaped upon the armed forces. In one incident in Rawalpindi, army vehicles were stopped by the protestors, and a clash was averted upon timely intervention of senior lawyers. The brazen display of posters and placards at these protest rallies inscribed with insulting messages continues to be a constant source of public embarrassment. Yet the application of force is not an option. This dilemma, at least in public image, makes the top brass look like an embattled lot with decreasing power to upstage its political opponents.

Compounding the problem is the fact that General Pervez Musharraf is in a crucial year of transition. The stock of his international goodwill on the war against terrorism is running on reserves. Most of his international backers are questioning his performance to manage extremism in Pakistan, especially with the baton-brigades roaming the streets of Islamabad, threatening everyone with imposition of Shariah. The situation elsewhere does not inspire much confidence in the international circles that General Musharraf has invested his power and donors’ resources well in countering the religious rightwing. The NWFP is virtually in the grip of a motley crew of suicidal jihadis, Taliban zealots, local mafias and foreign criminals. Together all of them are using the name of religion to expand their power base, eroding the writ of the state and killing their opponents at will. Waziristan, Tank, Dera Ismail Khan, Swat and Kohat are swamped with this new wave of jihadis. Their suicide squads are on the march, aiming for targets all across Pakistan. In the past two years, they have hit practically every conceivable symbol of state authority in every corner of the country. Courts, police stations, army posts and training camps, intelligence operatives, business centers, airports — nothing has been spared.

As it is, this challenge is hard enough to handle — it will become impossible if the lawyers’ protest continues apace. If the jihadis have shown the limits of General Musharraf’s raw power, the lawyers have decimated the legality of his rule.

That makes for a very troubled state. A system whose constitutionality and writ gets questioned every day on the streets has a serious existential problem.

Some of this bad news is filtering up. Even according to intelligence reports, generally conservative in their estimates of anti-government trends, “An overwhelming majority of informed people believe that the chief justice is innocent.” Unfortunately, these assessments, which are shared with the president by his close aides, draw the wrong conclusion from their findings: almost all intelligence agency and government information department heads recommend “tighter media policy to bring down this sentiment.”

Worse still, General Musharraf agrees with the self-serving argument that by removing the chief justice from the headlines, the issue can be resolved. In a background briefing with a few media persons, he candidly admitted that the present situation was a “crisis” to which he said he “did not have an answer” except that “if the media could sideline the issue” and “lower the hype” then the SJC could “sort it out on their own.”

Taking this as a cue to slam down hard on the media, his advisors issued immediate gag orders and slapped Aaj television with a show-cause notice for the cancellation of its broadcast license, besides spewing out warnings to different media outlets, including mainstream newspapers, writers, columnists and even some FM radio stations.

But so far, that too has backfired.

The furore of protest that followed, including a string of condemnatory statements from reputable national and international human rights bodies and a strong reaction from the public, only added to the pool of government embarrassment.

Unfortunately, there are not many in the ruling party who are willing to share this embarrassment. Pakistan Muslim League insiders say that the chief justice has become a rallying point for bottled up public frustrations and has galvanized the opposition’s ranks. Some PML members of parliament fear losing elections in their home towns, especially urban areas, on account of this crisis and are exceedingly critical of a “handful of people” who “wrongly advised or mislead the president into filing the reference.” In this ultimate test of real fealty to General Musharraf, the ruling party and its leaders have chosen to go undercover rather than brave it with the president.

The judiciary, too, is facing its moment of truth. Forced by the ever-growing protests of the Bars from all across Pakistan against the presidential reference, and realising that it is a now-or-never situation for the judiciary, some judges have already chosen sides. In Sukkur, Hyderabad, and Peshawar, where Chief Justice Iftikhar Chaudhry made carefully planned visits, high court judges turned up in near full strength. In Peshawar, the chief justice of the high court sat in a ceremony lasting three hours listening to speeches that blasted General Pervez Musharraf and the army in a language most hateful of the establishment. In the Punjab, the superior judiciary might not follow the example of Sindh and the NWFP because the chief justice of the Lahore High Court has already been squarely accused of “harbouring inveterate hatred” by the chief justice. Yet insiders say that there are many judges who, given a more “conducive environment,” would declare their allegiance.

This sums up the situation. Like the Punjab judges, there are too many just waiting for the right moment to join the club of protestors. Many more still want to keep the status quo to protect their political and financial interests.

Backed by such two-hearted loyalists, the system lives on — dangerously.