Judge row prompts Pakistan democracy questions

M Ilyas Khan
BBC News, Karachi

The role of Pakistan's judiciary is in the spotlight

Pakistani President General Pervez Musharraf's suspension of Chief Justice Iftikhar Mohammad Chaudhry has opened a new debate on democracy, constitutionalism and the role of military in the country.

The TV images of a president in military uniform chastising the country's top judge have had people in shock for the past four days.

Meanwhile, a storm of protests has erupted all over the country, with the legal community boycotting the courts and opposition parties gearing up for a political conference to debate the issue.

Members of the government insist the action is rooted in the constitution, but critics say the sequence of events shows that that may not be the case.

Military justice

On Friday, General Musharraf called the chief justice to Army House, his official residence in Rawalpindi, and asked him to explain his position on a list of charges brought against him from several quarters.

Finding his answers unsatisfactory, the official APP news agency reported, the president referred the allegations to the country's Supreme Judicial Council (SJC), a five-member body of senior judges empowered to probe the conduct of their peers.

At the same time, he issued two orders; one restraining the chief justice from performing his functions and the other ordering the appointment of an acting chief justice.

Mr Chaudhry (right) irked the president

Legal experts doubt the legality of both these orders.

They say under the constitution the president can send a reference to the Supreme Judicial Council against a judge, but has no powers to restrain him.

"It is the prerogative of the SJC," says a former chief justice, Justice Saeeduzzaman Siddiqui. "Usually, the judge himself opts out for the duration of the probe, and the court stops including him in the duty roster until the SJC has made its report."

But the controversy does not end here.

Harsh treatment

The chief justice "remained" at Army House for five hours, leading many to conclude that he was being detained.

Afterwards, his desire to go to the Supreme Court was overruled by the police escort that took him to his official residence in the Judges Colony in Islamabad.

He remained incommunicado for well over 48 hours, until a former politician, saying he "dodged" the security to enter his residence, met him briefly on Sunday.

The politician, Air Marshall (retired) Asghar Khan, told the press that the chief justice's telephone lines had been disconnected, his mobile phone blocked and the delivery of his newspapers stopped.

Other reports on Sunday said the national flag and the flag of the Supreme Court of Pakistan had been removed from his residence.

General Musharraf's decision has been highly unpopular

What did the chief justice do to warrant such harsh treatment when, according to the constitution, he is still the head of the judiciary in Pakistan?

Government officials say that several people have filed complaints with the president accusing the chief justice of misusing his office and receiving favours.

But critics say corruption is not an issue with the present government.

They point out that there are more serious charges - such as financial embezzlement and property fraud - against some judges, including two members of the Supreme Judicial Council which will hear the chief justice's case.

They also point to the federal cabinet, many of whose members had corruption cases pending against them in the National Accountability Bureau until they decided to join the government.

The chief justice was singled out because of his past performance, they say, which created misgivings in official circles about his likely role in the coming legal battles ahead of national elections, due later this year.

Government embarrassed

Since June 2005, when he took office for an eight-year term, the chief justice worked overtime to cut the backlog of cases at the Supreme Court.

He also took forceful action in cases relating to human rights, women and the environment, often coming down hard on senior police and civil officials to enforce the relevant laws.

But two cases stand out as evidence that the chief justice was not reluctant to take the legal battle to the very corridors of power in Islamabad.

In June 2006, he reversed the sale of state-owned Pakistan Steel Mills, citing legal violations in the process of sale by the concerned institutions including the Cabinet Committee on Privatisation, headed by Prime Minister Shaukat Aziz.

The chief justice is being guarded by a heavy police presence

More recently, he embarrassed the government by pressuring the intelligence agencies to disclose the whereabouts of scores of missing persons who they denied having detained.

Observers say with 2007 being an election year, the government is under pressure to retain its position in parliament and facilitate the re-election of General Musharraf for another term.

To avoid any risk, the government has already indicated it may let the present parliament elect General Musharraf and hold the elections later.

This is inevitably going to lead to legal disputes between the government and the opposition.

General Musharraf also requires legal sanction to continue to double as the army chief following his re-election as president.

But the chief justice's views on the issue were not what the government would have liked.

Iftikhar Chaudhry told trainee military officers in February that, in his opinion, General Musharraf could not continue as army chief beyond his present term as president.

Observers say there can be no better reason for his suspension last Friday than these remarks.