Cover Story: Pakistan; Judicial Jolt


	Feb 7, 2000

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PAKISTAN
Judicial Jolt

Senior judges refuse to toe the Government's line and undermine Musharrf's authority.

By Jason Burke

Irshad Hassan Khan woke up last Wednesday with the knowledge that he had a big day ahead of him. In the end it was going to be a lot bigger than he had thought as he sipped his chai. Khan, hitherto a fairly low-profile if politically astute Supreme Court judge, would be, by 10 in the morning, be donning the ceremonial robes as his country's new chief justice. It was a day full of drama. The previous night it was announced that Khan and 100 other judges in the national and provincial courts would be asked to take a formal oath to serve under the "Provisional Constitutional Order" that Chief Executive General Pervez Musharraf has passed.

The judges knew this meant they were bound not to oppose any of Musharraf's decisions. They would also be constrained from hearing any challenges to the legal legitimacy of his regime. They would be, as they were after pledging a similar oath to General Zia-ul-Haq in 1981, effectively subordinate to the executive government.

Chief Justice Said-uz-Zaman Siddiqui, the incumbent, refused the oath. So did five Supreme Court judges and eight other judges nationwide. Siddiqui was a Nawaz Sharif appointee, so the exact motives behind his decision could be questioned but publicly he has been categoric. "I will work under the Constitution, not under the provisional constitution," he stated.

Though Musharraf has shrugged off condemnation, the battle with the judiciary has come at a particularly bad moment for him. The trial of Sharif opened on the day the chief justice resigned and the two events, though legally distinct, have been conflated in the eyes of world.

The army is sensitive to charges that its rule lacks legitimacy. Last week's events hardly eased worries about its long-term plans. Musharraf has consistently refused to give any indication of when he plans to return Pakistan to democracy, provoking condemnation overseas and at home. One reason for the army's precipitate action must be that Siddiqui and several of the judges who refused to take the oath were due to hear a legal petition next week that challenged the constitutional basis of the current regime. The petition, made by Sharif's supporters, will still be heard though the results of the case are, observers say, a foregone conclusion.

Sharif's lawyers has asked for a postponment of the trial in Karachi until the Supreme Court had heard the petition, possibly jeopardizing the Sharif trial. But after hearing legal arguments, judge Rehmat Hussein Jaffri ordered that the trial continue and Ammanullah Choudry, former director of the Pakistani Civil Aviation Authority, be called as the first witness.

The prosecution hopes that Choudry's evidence will be the key to the conviction of Sharif, and his six co-defendants, on charges of hijacking, kidnapping, attempted murder and terrorism. The charges, which carry the death sentence, relate to events on the day of the army takeover when the prime minister is alleged to have tried to force a plane carrying Musharraf and 200 other passengers to crash.

Not only have a number of courts agreed to hear petitions from leaders of Sharif's Pakistan Muslim League, challenging the legitimacy of the military takeover but the Shariat Court recently ruled that Pakistan's banking system is currently "unIslamic" and ordered the army Government to impose a new system where interest is not charged on loans.

The general and his aides were horrified and made their irritation known. Three weeks ago a judge stopped a preliminary hearing of the case against Sharif to protest the presence of intelligence agents and paramilitary soldiers in the courtroom. He ordered the doors to the courtroom to be sealed to allow the arrest of the offenders though a mysterious delay allowed the spooks to slip out. Another judge had to take over.

In the coming months, the dissent against military rule is bound to grow. There has been no economic miracle yet and the man in the street is beginning to relapse into his usual cynicism. Let's hope Musharraf enjoyed his honeymoon. There are tough times to come.

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