[In recent months,
however, the Supreme Court has ventured deep into political peril in two
different cases. Last week, as part of a high-stakes corruption case, it
summoned Prime Minister Yousaf Raza Gilani to
testify in court under threat of contempt charges that, if carried to
conviction, could leave him jailed and ejected from office.]
By Declan Walsh
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Faisal Mahmood/Reuters
Police in Islamabad outside the Supreme Court building,
where Prime Minister Yousaf Raza Gilani testified last Thursday.
|
ISLAMABAD, Pakistan — Once they were heroes, cloaked justices at the vanguard of a
powerful revolt against military rule in Pakistan, buoyed by pugnacious lawyers
and an adoring public. But now Pakistan’s Supreme Court is waging a campaign of
judicial activism that has pitted it against an elected civilian government, in
a legal fight that many Pakistanis fear could damage their fragile democracy
and open the door to a fresh military intervention.
From an imposing,
marble-clad court on a hill over Islamabad, and led by an iron-willed chief
justice, Iftikhar Muhammad Chaudhry,
the judges have since 2009 issued numerous rulings that have propelled them
into areas traditionally dominated by government here. The court has dictated
the price of sugar and fuel, championed the rights of transsexuals, and, quite
literally, directed the traffic in the coastal megalopolis of Karachi.
But in recent weeks the
court has taken interventionism to a new level, inserting itself as the third
player in a bruising confrontation between military and civilian leaders at a
time when Pakistan — and the United States — urgently needs stability in
Islamabad to face a dizzying array of threats.
Judges say their
expanded mandate comes from the people, dating back to the struggle against the
military rule of Gen. Pervez Musharraf that began in 2007, eventually helping
to pry him from power. Memories linger of those heady days, when bloodied
lawyers clashed with riot police officers, and judges were garlanded and
paraded as virtual saints.
In recent months,
however, the Supreme Court has ventured deep into political peril in two
different cases. Last week, as part of a high-stakes corruption case, it
summoned Prime Minister Yousaf Raza Gilani to
testify in court under threat of contempt charges that, if carried to
conviction, could leave him jailed and ejected from office.
The court has also begun
an inquiry into a scandal known here as Memogate, a shadowy affair with touches
of soap-opera drama that has engulfed the political system since November. It
has claimed the job of Pakistan’s ambassador to the United States and now
threatens other senior figures in the civilian government, under accusations
that officials sought American help to head off a potential military coup.
Propelled by accounts of
secret letters, text messages and military plots, the scandal has in recent
days focused on a music video featuring bikini-clad female wrestlers that is likely
to be entered as evidence of immorality on the part of the central protagonist,
Mansoor Ijaz, an American businessman of Pakistani origin.
Hearings resume Tuesday
when Mr. Ijaz is due to give evidence. The fact that the courts have become the
arena for such lurid political theater has reignited criticism, some from
once-staunch allies, that the Supreme Court is worryingly overstepping its
mark.
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Aamir Qureshi/Agence France-Presse— Getty Images
Iftikhar Muhammad Chaudhry is
the Supreme Court's iron-willed chief justice.
|
“In the long run this is
a very dangerous trend,” said Muneer A. Malik, a former president of the
Supreme Court Bar Association who campaigned for Justice Chaudhry in 2007. “The
judges are not elected representatives of the people and they are arrogating
power to themselves as if they are the only sanctimonious institution in the
country. All dictators fall prey to this psyche — that only we are clean, and
capable of doing the right thing.”
The court’s supporters
counter that it is reinforcing democracy in the face of President Asif Ali Zardari’s corrupt
and inept government. On Saturday, Justice Chaudhry pushed back against the
critics.
The court’s goal was to
“buttress democratic and parliamentary norms,” he told a gathering of lawyers
in Karachi. Deep-rooted corruption was curtailing justice in Pakistan, he
added.
“Destiny of our
institution is in our own hands,” he said.
Mr. Chaudhry was
appointed to the Supreme Court under General Musharraf in 2000. Two years later
he wrote a judgment that absolved the military ruler for his 1999 coup. But Mr.
Chaudhry shocked his patron and his country seven years later with decrees that
challenged General Musharraf’s pre-eminence. Senior security officials were ordered
to track down individuals being illegally held by the military intelligence
agency, the Inter-Services Intelligence Directorate, or ISI, in some cases
working with the F.B.I. and C.I.A. The privatization of state companies came
under sharp scrutiny.
Then, on March 9, 2007,
General Musharraf tried to fire Justice Chaudhry and placed him under house
arrest. Protesting lawyers rushed into the streets in support of the chief
justice. New cable television channels broadcast images of the tumult across
the country. Power drained from General Musharraf, who resigned 18 months
later.
The euphoria was soon
tempered, however, by growing tensions with the new government. Mr. Zardari
hesitated to reinstate Mr. Chaudhry, believing that he was too close to his
political rivals and the military.
The standoff led to
fresh street protests in 2009, led by the opposition leader Nawaz Sharif. That
March, amid dramatic scenes that included a threatened march on the capital,
Mr. Zardari relented and Justice Chaudhry returned to the bench.
Within months, the
Supreme Court had cleared the way for the possible prosecution of Mr. Zardari
in a Swiss corruption case dating to the 1990s. The government cited Mr.
Zardari’s presidential immunity, and argued, along with some international
analyst groups, that the court was specifically targeting the president.
But among the wider
public, the court was winning broad support. It engaged in a series of muscular
interventions to champion the cause of ordinary Pakistanis, some of which broke
new ground. Judges expanded the civil rights of hijras, transgendered people
who traditionally suffered discrimination, called senior bureaucrats and police
officials to account, halted business ventures that contravened planning laws,
including a McDonald’s restaurant in Islamabad and a German supermarket in
Karachi, and issued a decree against the destruction of trees along a major
road in Lahore.
The court’s populist
bent has infuriated the government but won cheers from urban, middle-class
Pakistanis — the same people who had supported the lawyers’ drive against
General Musharraf. Largely young, frustrated by traditional politics and
angered by official graft, they constitute a political class that has in recent
months flocked to Imran Khan, the cricket star turned politician who is
enjoying a sudden surge in popularity, and is a strong defender of the
judiciary.
But the court’s activism
has also taken many erratic turns. Justice Chaudhry has fought trenchant
battles to win control of judicial appointments, a process traditionally in the
government’s purview. While the judiciary has vigorously pursued Mr. Zardari,
it absolved Mr. Sharif of his alleged crimes. And critics accuse Mr. Chaudhry
of failing to reform the chaotic lower courts, which remain plagued by long
backlogs. “Three years after the restitution of the chief justice, the delivery
of justice remains as poor as it has ever been,” said Ali Dayan Hasan, of Human
Rights Watch.
The gravest charges,
though, swirl around the memo scandal. Mr. Ijaz claims to hold an unsigned
memorandum showing that Mr. Zardari’s government sought covert United States
government help to avert a military coup in the poisonous aftermath of the
American raid that killed Osama bin Laden in May.
But the memo’s
provenance is unclear and Mr. Ijaz’s credibility has come under assault in the
news media. Last week a music video that went viral on the Internet showed Mr.
Ijaz acting as the ringside commentator in a wrestling contest between two
bikini-clad women and that, in one version, featured full nudity — a shocking
sight in conservative Pakistan.
The furor, which made
front-page news, injected a fresh sense of absurdity into proceedings that
already were under question, and that many here insist would never have started
without military intervention: the Supreme Court ordered the inquiry on Dec. 30
at the direct request of the army chief, Gen. Ashfaq Parvez Kayani, and the ISI
director general, Lt. Gen. Ahmed Shuja Pasha, who harbor little love for Mr.
Zardari. Also, the court ignored other claims by Mr. Ijaz that the army
secretly sheltered Bin Laden, and sought outside support to mount a coup — acts
that, if proven, could be equally treasonous.
Suspicions about the
court’s impartiality were renewed last Friday, when Mr. Chaudhry ordered the
government to disclose whether it intended to fire General Kayani or General
Pasha — even though such decisions are normally the government’s prerogative.
The titanic three-way
struggle among generals, judges and politicians comes at a time when Pakistan
has become increasingly chaotic. Taliban insurgents continue to roam the
northwest, the economy is in dire straits and urgently needed reforms in
education, health and other social sectors have been largely ignored.
From the standpoint of
the United States, the deadlock has diverted the spotlight from military
airstrikes that killed 26 Pakistani soldiers in November and brought the two
countries’ troubled relationship to a new low. But it has also drawn attention
away from a pressing priority of the United States in Pakistan: engaging
cooperation here to help negotiate a peace settlement with the Afghan Taliban
as a major troop withdrawal slated for 2014 draws near.
“In the midst of this
institutional wrangling, nobody has a clear plan as to how politics or foreign
policy are going to move forward, said Dr. Paula Newberg of Georgetown
University, who has written a book about Pakistani constitutional politics.
“Pakistan could easily have a much brighter future. But it gets itself worn
down by these incessant disputes about where power lies.”
