What is happening in Pakistan is unprecedented. It the first case of a coup in the country's history - and possibly the first in the world directed specifically at the judiciary and the independence that it had started to display. All Pakistani citizens have been directly affected by the events of 3 November 2007 - many of them in the most direct way possible; I myself, a lawyer in Pakistan, was arrested by the police the day after the imposition of martial law, before being released on bail on 8 November.
Salman Raja is a lawyer in Pakistan. He is a
graduate of Harvard Law School.
He was detained under the emergency decree of 3 November 2007, and held for five days before being released on bail
Pakistan's constitution and the key fundamental rights guaranteed by it have been made inoperative. The tension between the regime and the judiciary had developed during the year in the wake of the lawyers' movement against General Pervez Musarraf's attempt on 9 March 2007 to oust the chief justice, Iftikhar Mohammad Chaudhry, who had started to show signs of independence unacceptable to the military.
A flawed appeal
The United States and the European Union have made some noises about the restoration of the constitution and the holding of free elections at the earliest opportunity. This is not enough: it must be emphasised that any call to hold elections without the restoration of the judges who have been ousted plays directly into General Musharraf's hands. Twelve out of sixteen supreme court judges, including the chief justice have been ousted pursuant to the provisional constitutional order (PCO) issued on 3 November by General Musharraf in his capacity as the chief of the army staff. This order has no constitutional validity and is simply an assertion of military power. Only judges with known affiliation to the military junta have lined up to take a fresh oath of office under the PCO, in violation of their original oath to defend the constitution. Independent-minded judges have not been offered the fresh oath and if offered would not have taken it.
As a consequence, apart from the decimation of the supreme court, nearly 50% of the judges of the provincial high courts have been stripped of their office. This is a virtual demolition of the judiciary in Pakistan. The US and the EU are not talking about it. Elections without the restoration of the sacked judges will amount to throwing a cloak of ratification over the general's assault. A true demand from outside, one consistent with the democratic ideals these states profess, would be "no elections without the restoration of the judiciary". It is very clear that there can be no free elections under General Musharraf's watch with a handpicked docile judiciary looking the other way.
The legal context
It is important to understand the legal - and thereby political - context in which martial law has been imposed. The action of 3 November 2007 was inspired by three cases before the supreme court that were likely to be decided in the next few weeks.
The first pertained to the constitutionality of General Musharraf's election as president on 6 October for a further term of five years, even though at the time of the so-called election he was, and remains, the army chief. There is a clear bar in the constitution against an army officer engaging in politics. It had become increasingly clear that the supreme court would declare his election invalid.
The second case concerned the validity of an amnesty that the general had granted through an amnesty ordinance of which the main beneficiary was Benazir Bhutto. This amnesty affects not only the corruption cases before the Pakistani courts that Bhutto has been evading for the past eight years but also the cases before courts in Switzerland and Spain. A Swiss judicial authority has already convicted Bhutto of having received illegal gratification during her term as prime minister for government contracts granted to Swiss companies.
The matter is under appeal with original decision automatically suspended. The Swiss authorities decided at the end of October 2007 to continue to press charges of aggravated money-laundering against Bhutto. However, after General Musharraf's amnesty ordinance the Pakistan authorities had declared their intention not to participate in proceedings in Switzerland. It is clear that this failure to participate will make it exceedingly hard for the charges against Bhutto to be established. The amnesty ordinance was challenged before the Pakistan supreme court by one of Pakistan's most respected elder politicians, a former finance minister and a founding member of the Pakistan People's Party (founded by Benazir Bhutto's father, Zulfikar Ali Bhutto). Needless to say he has moved away from the PPP in disgust at Benazir's politics.
Among openDemocracy's many articles on
Pakistan under Pervez Musharraf:
Maruf Khwaja, "The Islamisation of Pakistan" (12 April 2006)
Shaun Gregory, "Pakistan on edge" (25 September 2006)
Ehsan Masood, "Pakistan: the army as the state" (12 April 2007)
Anatol Lieven, "At the Red Mosque in Islamabad" (4 June 2007)
Paul Rogers, "Pakistan's peril" (19 July 2007)
Maruf Khwaja, "The war for Pakistan" (24 July 2007)
Irfan Husain, "Pakistan's poker-game" (14 September 2007)
Shaun Gregory, "Pakistan: farewell to democracy" (29 October 2007)
Irfan Husain, "Pervez Musharraf's desperate gamble" (5 November 2007)
Ayesha Siddiqa, "Pakistan: the power of the gun" (7 November 2007)
(A declaration of interest: I am the lead counsel in this case and argued the matter for two hours before the supreme court on 12 October. The case was then admitted to regular hearing from 5 November and the court passed an order to the effect that all actions pursuant to the amnesty would remain contingent upon the ultimate decision of the court. This order and the alacrity with which the supreme court had taken up the matter were heavily criticised by Benazir Bhutto in threatening tones).
The third case is a contempt-of-court petition filed by former prime minister Nawaz Sharif who has been forcibly kept out of Pakistan by General Musharraf despite a clear supreme-court judgment saying that he has a fundamental right to return to Pakistan. In its last hearing, conducted a few days before the imposition of martial law, the court had declared its intention to punish all involved - including possibly the present puppet prime minister, Shaukat Aziz - in the flouting of its earlier orders directing that Sharif not be prevented from returning.
The world and Pakistan
These three cases are now unlikely to amount to much. The case against the amnesty order rested primarily on Article 25 of the constitution, which assures equality for all. This article has been suspended. The common impression is that this has been done with Benazir Bhutto's approval.
Herein lies the rub. No matter how much Bhutto decries martial law - and even in the contest of her "house arrest" on 9 November - she is its chief beneficiary. It is for this reason that Bhutto has hardly squealed about the restoration of the judges even though she joins the daily US demands for fresh elections. General Musharraf generously agrees, daily, that elections must be held soon. There is no talk of the restoration of the judiciary.
Nawaz Sharif's case depends on Article 15 of the constitution, which assures freedom of movement and the right of residence to all citizens. This article has also been suspended. As for the general's eligibility, the recomposed supreme court is likely to hear the matter and throw out the challenge soon.
It is critical to the future of Pakistan and the volatile region it belongs to that the outside world understands what has happened. The cause of the independence and restoration of the Pakistani judiciary is at the centre of this crisis. It is important also that Benazir Bhutto not been seen and heard - as she is too often in the United States and the European Union - as the main representative of the pro-democracy, secular-minded civil society of Pakistan. The Pakistan Bar Council and the other lawyers' associations are united in opposing elections without the restoration of the judiciary. They must be heard.