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Last Updated: Wednesday, 14 November 2007, 15:37 GMT
Musharraf's crackdown on the courts
By M Ilyas Khan
BBC News, Karachi

Iftikhar Chaudhry
Mr Chaudhry insists he is still legally chief justice

In the current upheavals in Pakistan, one thing appears certain.

Military ruler Gen Pervez Musharraf will not entertain letting former Supreme Court Chief Justice Iftikhar Chaudhry back into his job.

On Sunday he lashed out at Mr Chaudhry again, calling him corrupt and a hurdle in the way of the smooth working of the government.

He told journalists in Islamabad that the entire problem of the judiciary boiled down to one individual, Mr Chaudhry, who he sacked as part of the state of emergency introduced on 3 November.

If that is the case, then why have so many other judges also been sacked, Mr Chaudhry asks?

Disarray

The higher judiciary has, in recent weeks, set itself two pivotal tasks.

The government's frantic search for judges to fill the vacancies is running into problems

The first, to decide if Gen Musharraf is eligible to stand for another term as president when his current term expires this week. The second, to decide if an amnesty he had signed that clears Benazir Bhutto and others from corruption cases is legal.

In other words, the judiciary had set itself the task of deciding if the whole delicate framework of a future power-sharing deal should be allowed to proceed.

Gen Musharraf introduced the emergency in a way that meant judges could stay in their jobs only if the government invited them to swear a new oath of office.

Mr Chaudhry was only one of many judges not to receive that invitation - hence the widespread belief that the main purpose of the state of emergency was to subdue once and for all an increasingly troublesome judiciary.

Lawyers protest in Islamabad on Tuesday 6 November 2007
Lawyers have led protests against the state of emergency

What has been the cost?

The imposition of emergency rule has led to a virtual collapse of the higher judiciary in Pakistan - that is the Supreme Court and the High Courts of the country's four provinces.

Nearly 60% of the judges have been ousted from office either because they were not invited to take a new oath of office, or because they refused the offer.

Thousands of anti-government activists, including lawyers with cases pending in these courts, have been arrested since 5 November when anti-government protests broke out.

More than half the courtrooms have no judges. Most lawyers who are still free are refusing to appear before judges who have taken the new oaths under the provisional constitutional order (PCO).

In scores of cases, judges are reported to have resorted to dismissing petitions because there are no lawyers to represent them.

Polarised judiciary

The government's frantic search for judges to fill the vacancies is running into problems.

A lawyer is detained by police in Lahore, 5/11/07
Many lawyers have been detained

Senior lawyers who qualify as judges are reluctant to wear the wig because of the polarised atmosphere.

These include top lawyers of the government itself.

Some of those who are willing to become judges lack the necessary qualifications. Others have reputations that are less than clean, which would make their recruitment appear in bad taste.

While the judicial system is thus paralysed, a little-noticed amendment to the Army Act has created further problems for the judicial system.

Since 2003 military intelligence outfits that have no legal powers of arrest have picked up hundreds of people from various parts of the country and kept them in undeclared custody for months, even years.

There is widespread evidence that most of these "missing persons" are non-violent supporters of nationalist groups from Balochistan and Sindh provinces.

Those who have been released have talked of being kept in solitary confinement and being tortured. There are also reports of people dying, or being permanently incapacitated, while in illegal detention.

In no case yet have the intelligence agencies been prepared to stand up in court and defend themselves.

'Missing persons'

This was evident when the agencies concerned were forced by the Supreme Court to produce more than 160 such persons before it this year. All of them had to be released due to lack of evidence against them.

The government now hopes that such detainees will be dealt with through summary trials in military courts.

EMERGENCY RESTRICTIONS
Constitutional safeguards on life and liberty curtailed
Police get wide powers of arrest
Suspects can be denied access to lawyers
Freedom of movement restricted
Private TV stations taken off air
New rules curtail media coverage of suicide bombings or militant activity
Chief justice replaced, others made to swear oath of loyalty
Supreme Court banned from rescinding emergency order

This has come under widespread criticism both at home and abroad, but Gen Musharraf remains adamant.

On Sunday, he categorically ruled out any chance of reinstating sacked judges. He has also reiterated the necessity of punishing the "terrorists whom the Supreme Court set free".

The lawyers have vowed to counter both these moves, and they are supported by human rights groups and the opposition parties.

Opposition leader and former Prime Minister Benazir Bhutto was initially reluctant to take a position on the judges issue. Now however, she has demanded that the sacked judges be reinstated.

As positions harden in Pakistan, the issues of the judiciary and human rights could continue to be an embarrassment for Gen Musharraf's Western allies.

They consider him crucial to the US-led "war on terror" and would very much like to see him aligned with a credible political force in the country.

But they may find it increasingly difficult to ignore his recent attack on civil liberties against which a national consensus is fast emerging.

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