International Implications of Pakistan’s Judicial Crisis
Weekly Pulse
March 16-22, 2007
The timing of the judicial crisis facing the country over the apparent dismissal and alleged detention of ‘Chief Justice’ Iftikhar Muhammad Chaudhry couldn’t be worse for the Musharraf regime—which has already come under increasing external pressure, especially from the United States, for “not doing enough” in the war on terror.

If daunting problems such as the Afghan allegations against Pakistan on Taliban infiltration, India’s unwilling to meet Pakistani expectations regarding the peace process, and uncertainties concerning the forthcoming parliamentary and presidential elections in the country were not enough, the judicial crisis has added to the list of challenges facing the Musharraf regime on home and external fronts.

Whether the government is right or wrong in leveling charges of “misuse of office” against the Chief Justice will be determined by the Supreme Judicial Council or the Supreme Court. However, it has become apparent that the Musharraf regime failed to foresee the consequence of its decision to declare the Chief Justice “non-functional” and hold him incommunicado at his official residence in Islamabad. The reaction by local lawyers and politicians against the government’s decision has been unprecedented. The government has also come under criticism from the US-based Human Rights Watch on the matter.

In a recent statement, the Human Rights Watch said the government’s dismissal and detention of the Chief Justice contravened provisions for the removal of judges under Pakistan’s constitution and severely undermined judicial independence in the country.

Ali Dayan Hasan, South Asia researcher for Human Rights Watch stated, “By brazenly and unlawfully dismissing, detaining and humiliating the chief justice of the Supreme Court, President Musharraf has created a constitutional crisis at the judiciary’s expense.” “The Pakistani government must allow Justice Chaudhry a fair, open hearing where he has adequate opportunity to study the charges leveled and benefit from legal advice,” said Hasan, adding: “Anything less will amount to a mockery of justice.”

Last week, Mr Hasan and I were part of a group of academics, lawyers, politicians and human rights activists who had given their respective testimony before a special panel of eminent jurists from the International Commission of Jurists (ICJ) in Islamabad on the human rights implications of counter-terrorism in Pakistan.

In his presentation, Mr Hasan focused at length on the issue of “forced disappearances” in Pakistan involving US complicity in the abduction of individuals in the “global war on terror” and their interrogations by US law enforcement agents in illegal detention centers.

While a succession of events may have over time widened the gulf between the Chief Executive and the Chief Justice, an important factor that may have triggered the present judicial crisis is said to be the issue of “forced disappearances,” which the Chief Justice had taken up quite proactively since late last year.

My testimony before the ICJ panel did not deal as such with the issue of forced disappearances, it underlined the importance of the intricate realities of Pakistan’s tribal regions bordering Afghanistan, which predate the US-led war on terror, urging the eminent ICJ jurists to look beyond the current dimension of the war on terrorism and its implications for human rights in Pakistan.

It is, in fact, an irony that the present judicial crisis may have occurred as a direct consequence of Pakistan’s engagement in the war on terror—as in the absence of this war, the issue of ‘forced disappearances’ may not have occurred. And if this issue is presumably the triggering factor in the present judicial crisis, then in the absence of this issue, this very crisis could not have occurred.

Coincidently, the United States seems to continue pressing Pakistan to do more in the war on terror, even while a judicial crisis in the country triggered by the human rights implications of this war is likely to aggravate in the coming days—or, at least, until the time the Supreme Judicial Council announces its verdict on the afore-mentioned case. An important indicator of the sort of American pressure that the Musharraf regime is likely to face in the foreseeable future is a recent article published by The New York Times. Some excerpts of this article by Mark Mazzetti titled “One Bullet Away From What?” are worth-quoting.

The article begins by saying that “inside Washington, the frustration of doing business with President is matched only by the fear of living life without him. “For years, the notion that Mr. Musharraf is all that stands between Washington and a group of nuclear-armed mullahs has dictated just how far the White House feels it can push him to root out al-Qaeda and Taliban operatives who enjoy a relatively safe existence in Pakistan.

“The specter of Islamic radicals overthrowing Mr. Musharraf has also limited the Bush administration’s policy options, taking off the table any ideas about American military strikes against a resurgent Al Qaeda, which has camps in Pakistani tribal areas.

But just how fragile is Mr. Musharraf’s hold on power? And might the United States have more leverage than it believes? “The question of how to handle Mr. Musharraf is critical at a time when intelligence officials widely agree that the Taliban is expanding its reach in Pakistan, gradually spreading from remote areas into more settled regions of the country.”

Such remarks in an article that also mentions the possible power squabbling and structure in post-Musharraf Pakistan should be a worrisome matter for the Musharraf-led politicao-military dispensation in the country, especially at a time when it is grappling with perhaps the most daunting domestic political challenge in its over seven years history.

The Musharraf regime has consistently stated that it has done whatever it could do in terms of fighting the US-led war on terror. Yet it has come under increasing US and Afghan criticism for not doing enough. Despite Pakistan’s consistent claim of arresting most of the al-Qaeda leaders and activists in the country and handing them over to the United States, Washington has increased pressure on the country for doing more on the issue of Taliban infiltration.

The passage of House of Representative bill requiring Presidential certification about Pakistan’s commitment to counter-terrorism as a requirement for the continuation of US military and economic assistance to Pakistan is a cause of worry for the Musharraf regime.

Finally, India has not been forthcoming in the peace process insofar as the settlement of major unresolved disputes such as Kashmir is concerned. India’s preference is to negotiate more Confidence-Building Measures and further delay resolution of dispures such as Kashmir. In fact, like the Karzai regime, the Indian leadership has been using the issue of terrorism to divert international attention from the self-determination character of the Kashmir dispute.

If seen in the backdrop of such mounting external pressures on Pakistan, a volatile domestic issue such as the present judicial crisis will only aggravate the country’s ability to diplomatically navigate the increasingly difficult regional and international terrain—unless, of course, an amicable way out to resolve the current judicial crisis is found.