The headlines everywhere are filled with the scandal of District Attorneys fired for political reasons. The White House, the Justice Department, Congress and pundits are immersed in pondering the consequences of such gross politicization of the Law. Gone un-noticed, outside of a few reports, is another crisis involving the executive and the judicial branches that is tearing a nation apart. This one, though, has consequences far graver than Karl Rove’s testimony before some committee. Two weeks ago, General Musharraf suspended the Chief Justice of the Supreme Court of Pakistan, Iftikhar Muhammad Chaudhry, on vague corruption charges. Since then, daily riots and protests have broken out in major cities; the goverment has tried to shut down tv stations which reported on these riots; the police have repeatedly assaulted the lawyers who are leading the process. Musharraf claims that this is much ado about nothing. But this crisis could bring down the government of General Pervez Musharraf of Pakistan.
I said government, but of course, a more honest description of the State in Pakistan would be praetorianism or authoritarianism or dictatorship. And no, I will not be crying if it does fall apart. The truth is, though, that with the support of freedom-growers like Condi Rice and the White House, Musharraf is secure in doing what he can to stay in power. If that means turning Pakistan into a police state [if an sustainable argument can even be made that it is not already one] and imprisoning or vanishing his opponents, then he will do it. This is a pivotal year for him – 2007. He has promised elections. He has promised to return democracy. He has promised to run in elections. But, like his earlier promises of shedding the military uniform or stepping down, he would have found a way – with the support of the White House – to keep himself in power as a military and civil commander while allowing some rudimentary nods towards electoral politics. How would he have managed that? The same way that every single military regime in Pakistan has done it since 1958: with the support of an ‘independent judiciary’ which would legitimize his actions as mere counter-balances to a ‘corrupt or run-away’ legislature.
From Ayub Khan to Zia ul Haq to Pervez Musharraf, Pakistan’s warrior-kings have made one fundamental claim to the public: that their particular act of suspension of democracy in Pakistan was ultimately constitutional and, hence, for the benefit of the nation. And they have had the support of the Supreme Court in making this claim – a support which gave them the necessary legitimacy to stay in power. In order to understand the current crisis in Pakistan – and to recognize the ultimate blunder of Pervez Musharraf – we have to look at the history and role of the Constitution in Pakistan, the historical involvement of the judiciary in the dismissal of democratic institutions and the tensions between the three centers of power in Pakistani society that undergrid this whole enterprise. Feel up to it?
It is all about the mythic Constitution.
It took nine years after independence, in 1956, for the Constitutional Assembly to come up with the first constitution of Pakistan. That remarkable document survived a mere two years – as General Ayub Khan installed Martial Law in 1958. Another constitution was drafted in 1962, suspended in 1969 and abrogated in 1972. Finally, the constitution drafted in 1973 has held up to this day albeit with this checkered past, summarized aptly by the CIA Factbook: suspended 5 July 1977, restored with amendments 30 December 1985; suspended 15 October 1999, restored in stages in 2002; amended 31 December 2003. It was Zia ul Haq who issued a dozen or so Presidential Ordinances which were grafted as amendments to the constitution in 1985. Among other things, they cemented the power of the Executive to dismantle the legislative branch within the Constitution. Ask Benazir Bhutto and Nawaz Sharif about that.
It may appear counter-intuitive from the teleology I give above, but the Constitution became an almost totemic document in the Pakistani political psyche. It may be that the very public and near-constant assaults increased its importance as a political document. Or, I can conjecture that it was one of the sole documents that sought to ‘define’ Pakistan as a post-independent reality as opposed to a ‘once-future’ promise of 1940 (is it an Islamic State? a Democratic Republic? whose Laws for whom? were all questions that had to be answered in that document. Of course they remain questions, still). The keepers of this tattered almost-narrative – the Supreme Court of Pakistan – have built their own prestige on the back of this document by honing a unique relationship to Pakistan’s self-identification.
The first blow was struck in 1954, when Governor General Ghulam Muhammad dissolved the Constituent Assembly. Maulvi Tamizuddin Khan, the President of the Assembly, appealed to the Supreme Court, asking it rule on the legitimacy of such an action – was the legislative branch a legitimate member of the government, he asked. Chief Justice Mohammad Munir sided with the executive and declared that the legislative served only at the pleasure of the executive because Pakistan was a dominion state and the British Raj still applied. Four years later, in October 1958, President Iskander Mirza killed off the 1956 Constitution and declared Martial Law with General Ayub Khan as the Martial Law Administrator. The case State vs Dosso came before CJ Munir again. Using Hans Kelsen‘s Grundnorm thesis, the Supreme Court upheld the coup. The very next day, General Ayub Khan exiled the President and the template was fixed for futures to come.
In 1977, the Supreme Court unanimously upheld Martial Law under General Zia ul Haq. In 1981, he instituted the Provisional Constitutional Order and asked all Justices to re-take their oaths. Those that refused, were fired or retired. This was to ensure future accommodation of any wishes of the Chief Military Officer of the country. The Supreme Court, for example, rejected all challenges and upheld the 1988 dissolution of the National Assembly by General Zia. In 2000, Musharraf stuck to the playbook by sacking any judge that refused to take their oaths to his regime.
The basis of this symbiotic relationship between The General and the Court lie in the structure of power and influence in Pakistani society. The tiers in this pyramid are the Military, which is the largest employer, the largest landholder and has the longest duration in power, the civil bureaucracy, which traces back to the Raj though much weakened during Musharraf’s tenure, and the largely land-based elite. Functioning between these tiers are functional classes like the Lawyers who have parlayed their unique access to military, civil and landed elite into their necessary role as brokers. The Court is apex of such brokerage. It has relied especially on the hagiography of the Constitution to bolster its power. The Generals, eager to have any official stamp on their chest, have in turn portrayed the Court as the last bastion of truly apolitical and patriotic actors in Pakistan. Which means that when scandal does erupt around the Court, it has far greater reverberations.
To return to Chief Justice Iftikhar Muhammad Chaudhry and Pervez Musharraf’s blunder. A letter was circulated via emails and blogs that accused the CJ of corruption, cronyism, and abuse of public trust. There was nothing terribly unique in any of the assertions. In fact, upon first reading it, I was convinced that it was a satirical piece since it perfectly described the behavior of every person of power in Pakistan. Surprisingly, the State seized this letter and filed a complaint against the CJ and before any investigation was launched, removed him from office. The State, in fact, agreed that the CJ of Pakistan was corrupt and abused the public trust.
I can assume that CJ Chaudhry could not be fully trusted to tow the line in this crucial year, and had to go in any case – the letter providing a handy excuse. The problem is that after years of building the judiciary as the last bastion of honesty, the State pulled the rug out of its own feet. It undermined it’s own claims and attacked the public trust in the Supreme Court. The reaction was swift and massive – with public protests and demonstrations and speeches. The State still could have contained the damage; instead it made all the wrong moves in the initial stages of the scandal. It made unsubstantiated charges, changed its own story, attacked the press and the lawyers. In a very short period of time, it managed to delegitimize itself in the eyes of the public, create a sharp division with the judiciary and alienate, perhaps irrevocably, itself from the section of the population that has helped it to maintain law and order – the brokering legal community.
This is perhaps the end-game for The General. However he survives this, he cannot rely on the legitimating authority of the Supreme Court. The street unrest will trigger other interests out as well – the Islamist parties, the dormant political opposition, MQM and, maybe, attention from the Democratic Congress of United States.
Alberto Gonzales wrote memos justifying torture and suspension of Geneva Convention and habeas corpus and …. nothing, there were no consequences. He fired 8 lawyers and all voices proclaim that he should be ex-Attorney General in about 3 days. The General should have known: Do whatever but don’t fuck with the lawyers.