Friday, July 31, 2009

Why Is Iftikhar Chaudhary Backing Off?

Close observers of Pakistani politics will have no doubt noted this story, in which it is claimed that the judiciary is backing off from charging former president Pervez Musharraf with treason.
ISLAMABAD: Chief justice turned down a request on Thursday to launch a treason case against former military ruler Pervez Musharraf, saying the Supreme Court lacked the authority.

Justice Iftikhar Chaudhry's remarks could reassure both the fragile civilian government and military establishment, as they can ill-afford any fresh crisis at a time when the country is fighting a Taliban insurgency.

‘This is not the proper forum to initiate such case. We are not authorised to do so,’ Chaudhry told the court.

The question I'm wondering about is: why? It's not as if the Chief Justice and the apex court have in the past shown any reluctance to overstep their bounds and tread where they are not authorized to do so. There are a few explanations I can think of.

First, the judiciary (and by that I mean Chaudhary) thinks Musharraf is irrelevant now that he is no longer in power. Therefore it makes little sense to waste time, energy, and political capital, and risk considerable political turmoil, for someone who doesn't matter anymore. Chaudhary might reason that his time is better spent getting in Zardari's way than punishing Musharraf, because the former is still central to Pakistani politics.

Second, Chaudhary and the court might have been chastened from the recent hullabaloo over the carbon tax and its rescinding. For the first time since March 2007, his actions were actually questioned and debated, rather than simply thought of as the delivery of divine justice. Most people -- and this is just a hunch; I have no data to back it up -- probably still supported his stance, but at least there was a discussion. When Ayaz friggin' Amir (of all people) takes issue with Iftikhar Chaudhary and the judiciary, you know something's up. The point is, if Chaudhary and his activist court was being debated in the public sphere for the mere reason of a carbon tax, he might have thought that trying Musharraf for treason for crimes that were no more egregious than those of every Pakistani ruler that has ever lived (including his closest political ally, Nawaz Sharif) might be a bit much.

Third, it would strike many (including perhaps Chaudhary himself, who by all accounts is a good man, if a misguided one) as hypocritical for the court to try Musharraf for subverting the constitution when, um, Chaudhary was the one who not only rubber-stamped his coup in 1999, but also in 2000 gave him the right to amend the constitution. Tricky business this, when people actually have long memories, don't fawn over you and actually examine the historical record, no?

Fourth, Chaudhary (like Musharraf) is a patriot, and might have reasoned that there is enough political turmoil in the country as it stands. He might also have been politely told by stakeholders as varied as Kayani and Gillani that this might not be an especially bright idea. Not in so many words.

My best bet is that it is a combination of numbers one and four, with two and three playing background roles. Or maybe this is much-ado-about-nothing; maybe Chaudhary is just delaying the moment at which Musharraf is tried, and not actually forswearing the possibility that he will be. Who knows?

5 comments:

Jibz said...

I dont think its the 2nd half of point number 4. I mean Gilani doesnt seem like he would enjoy being at the centre of another controversy, and the Army chief seems like a smart enough guy to note how Musharraf was basically screwed over after trying to influence the same Chief justice.

Dont know if it could have been another stakeholder.

Ahsan said...

Jibz:

Gillani was just an example I was using. The basic point I was making is that people from very different backgrounds and political interests probably don't want this to happen. Aside from the PML-N and their screeching leadership, I don't see anyone really angling for this, though of course things can change very quickly.

karachi khatmal said...

im no lawyer, but the text for the rulings the SC has given out seems to be pretty solid.

according to the constituion, the SC can only find someone guilty of subverting the constituion, which is high treason. article six clause three makes clear that only the parliament can decide the punishment. i think that's why he backed off. but again this is pakistan no one wull want to buy the simple explanation

Ahsan said...

KK:

Do you really think Chaudhary gives a rat's ass what the Supreme Court is constitutionally allowed to do or not do? Carbon tax, anyone? Traffic in KHI? He's not exactly the type to stay within his constitutional boundaries, is he?

Honest said...

Adalat ho gi ma kay jaisi

Chief Justice Iftikhar Chaudhry is unique. His judges are his soldiers. The judiciary functions under his chain of command. Every judge is at his beck and call. His is the last word. He constitutes benches comprising of judges of his own choice. He decides cases against persons who were never a party to any case. He condemns them unheard and that too without notice. He has removed over 104 judges of superior judiciary without hearing them. He is of the view that the position of a judge is so honorific that he should not appear before his brother judges and therefore no hearing should be provided to him. He has repeatedly dubbed these 104 judges as PCO judges whereas none of these judges ever took an oath under the PCO while Chief Justice took PCO oath twice and also validated the PCO of General Musharaf in 2000. He issued contempt notices to his fellow judges and caused them to appear in court despite their elated positions. He can alter, violate or rewrite his own constitution. He can refuse to follow seniority principle in appointing a Supreme Court judge despite having held that all appointments in executive branch should be based on seniority. He condemns adhocism but has forced the appointment of an adhoc judge in the Supreme Court. He has condemned over 8000 persons including judges of superior courts, two high ranking law officers, a former attorney general and Chairman of NAB without providing all these persons with an opportunity of hearing in two recent judgments . In the judgment of 31st of July Chief Justice has relied on order dated 3rd of November 2007 of seven member bench. It is now established that no order was passed on 3rd of November 2007 by this so-called bench which in fact had never assembled. The Chief Justice has fabricated the said order. It is because of this reason that PCO judges who took oath on 3rd November 2007 are not being assigned any court work in violation of article 209 of the constitution by Chief Justice of Pakistan and Chief Justice of Lahore High Court for the last more than 8 months on the pretext of pending contempt proceedings. This act alone is causing a recurring loss of over 10 million per month to the national exchequer because these judges and their staff are getting full salary and perks but are not being made to work. The contempt proceedings are not being taken up since these are based on fictitious order of 3rd of November 2007 and further proceedings in this contempt case can bring to light the fraud committed by Chief Justice Iftikhar. Hats off to lawyers movement- May I ask Aitzaz, that, was he referring to his step mom when he said ” adalat ho gi ma kay jaisi “.