Pakistan Court Widens Role, Stirring Fears for Stability
By DECLAN WALSH - The New York Times
Published: January 22, 2012
ISLAMABAD, Pakistan — Once they were heroes, cloaked justices at the vanguard of a powerful revolt against military rule in Pakistan, buoyed by pugnacious lawyers and an adoring public. But now Pakistan’s Supreme Court is waging a campaign of judicial activism that has pitted it against an elected civilian government, in a legal fight that many Pakistanis fear could damage their fragile democracy and open the door to a fresh military intervention.
From an imposing, marble-clad court on a hill over Islamabad, and led by an iron-willed chief justice, Iftikhar Muhammad Chaudhry, the judges have since 2009 issued numerous rulings that have propelled them into areas traditionally dominated by government here. The court has dictated the price of sugar and fuel, championed the rights of transsexuals, and, quite literally, directed the traffic in the coastal megalopolis of Karachi.
But in recent weeks the court has taken interventionism to a new level, inserting itself as the third player in a bruising confrontation between military and civilian leaders at a time when Pakistan — and the United States — urgently needs stability in Islamabad to face a dizzying array of threats.
Judges say their expanded mandate comes from the people, dating back to the struggle against the military rule of Gen. Pervez Musharraf that began in 2007, eventually helping to pry him from power. Memories linger of those heady days, when bloodied lawyers clashed with riot police officers, and judges were garlanded and paraded as virtual saints.
In recent months, however, the Supreme Court has ventured deep into political peril in two different cases. Last week, as part of a high-stakes corruption case, it summoned Prime Minister Yousaf Raza Gilani to testify in court under threat of contempt charges that, if carried to conviction, could leave him jailed and ejected from office.
The court has also begun an inquiry into a scandal known here as Memogate, a shadowy affair with touches of soap-opera drama that has engulfed the political system since November. It has claimed the job of Pakistan’s ambassador to the United States and now threatens other senior figures in the civilian government, under accusations that officials sought American help to head off a potential military coup.
Propelled by accounts of secret letters, text messages and military plots, the scandal has in recent days focused on a music video featuring bikini-clad female wrestlers that is likely to be entered as evidence of immorality on the part of the central protagonist, Mansoor Ijaz, an American businessman of Pakistani origin.
Hearings resume Tuesday when Mr. Ijaz is due to give evidence. The fact that the courts have become the arena for such lurid political theater has reignited criticism, some from once-staunch allies, that the Supreme Court is worryingly overstepping its mark.
"In the long run this is a very dangerous trend," said Muneer A. Malik, a former president of the Supreme Court Bar Association who campaigned for Justice Chaudhry in 2007. "The judges are not elected representatives of the people and they are arrogating power to themselves as if they are the only sanctimonious institution in the country. All dictators fall prey to this psyche — that only we are clean, and capable of doing the right thing."
The court’s supporters counter that it is reinforcing democracy in the face of President Asif Ali Zardari’s corrupt and inept government. On Saturday, Justice Chaudhry pushed back against the critics.
The court’s goal was to "buttress democratic and parliamentary norms," he told a gathering of lawyers in Karachi. Deep-rooted corruption was curtailing justice in Pakistan, he added.
"Destiny of our institution is in our own hands," he said.
Mr. Chaudhry was appointed to the Supreme Court under General Musharraf in 2000. Two years later he wrote a judgment that absolved the military ruler for his 1999 coup. But Mr. Chaudhry shocked his patron and his country seven years later with decrees that challenged General Musharraf’s pre-eminence. Senior security officials were ordered to track down individuals being illegally held by the military intelligence agency, the Inter-Services Intelligence Directorate, or ISI, in some cases working with the F.B.I. and C.I.A. The privatization of state companies came under sharp scrutiny.
Then, on March 9, 2007, General Musharraf tried to fire Justice Chaudhry and placed him under house arrest. Protesting lawyers rushed into the streets in support of the chief justice. New cable television channels broadcast images of the tumult across the country. Power drained from General Musharraf, who resigned 18 months later.
The euphoria was soon tempered, however, by growing tensions with the new government. Mr. Zardari hesitated to reinstate Mr. Chaudhry, believing that he was too close to his political rivals and the military.
The standoff led to fresh street protests in 2009, led by the opposition leader Nawaz Sharif. That March, amid dramatic scenes that included a threatened march on the capital, Mr. Zardari relented and Justice Chaudhry returned to the bench.
Within months, the Supreme Court had cleared the way for the possible prosecution of Mr. Zardari in a Swiss corruption case dating to the 1990s. The government cited Mr. Zardari’s presidential immunity, and argued, along with some international analyst groups, that the court was specifically targeting the president.
But among the wider public, the court was winning broad support. It engaged in a series of muscular interventions to champion the cause of ordinary Pakistanis, some of which broke new ground. Judges expanded the civil rights of hijras, transgendered people who traditionally suffered discrimination, called senior bureaucrats and police officials to account, halted business ventures that contravened planning laws, including a McDonald’s restaurant in Islamabad and a German supermarket in Karachi, and issued a decree against the destruction of trees along a major road in Lahore.
The court’s populist bent has infuriated the government but won cheers from urban, middle-class Pakistanis — the same people who had supported the lawyers’ drive against General Musharraf. Largely young, frustrated by traditional politics and angered by official graft, they constitute a political class that has in recent months flocked to Imran Khan, the cricket star turned politician who is enjoying a sudden surge in popularity, and is a strong defender of the judiciary.
But the court’s activism has also taken many erratic turns. Justice Chaudhry has fought trenchant battles to win control of judicial appointments, a process traditionally in the government’s purview. While the judiciary has vigorously pursued Mr. Zardari, it absolved Mr. Sharif of his alleged crimes. And critics accuse Mr. Chaudhry of failing to reform the chaotic lower courts, which remain plagued by long backlogs. "Three years after the restitution of the chief justice, the delivery of justice remains as poor as it has ever been," said Ali Dayan Hasan, of Human Rights Watch.
The gravest charges, though, swirl around the memo scandal. Mr. Ijaz claims to hold an unsigned memorandum showing that Mr. Zardari’s government sought covert United States government help to avert a military coup in the poisonous aftermath of the American raid that killed Osama bin Laden in May.
But the memo’s provenance is unclear and Mr. Ijaz’s credibility has come under assault in the news media. Last week a music video that went viral on the Internet showed Mr. Ijaz acting as the ringside commentator in a wrestling contest between two bikini-clad women and that, in one version, featured full nudity — a shocking sight in conservative Pakistan.
The furor, which made front-page news, injected a fresh sense of absurdity into proceedings that already were under question, and that many here insist would never have started without military intervention: the Supreme Court ordered the inquiry on Dec. 30 at the direct request of the army chief, Gen. Ashfaq Parvez Kayani, and the ISI director general, Lt. Gen. Ahmed Shuja Pasha, who harbor little love for Mr. Zardari. Also, the court ignored other claims by Mr. Ijaz that the army secretly sheltered Bin Laden, and sought outside support to mount a coup — acts that, if proven, could be equally treasonous.
Suspicions about the court’s impartiality were renewed last Friday, when Mr. Chaudhry ordered the government to disclose whether it intended to fire General Kayani or General Pasha — even though such decisions are normally the government’s prerogative.
The titanic three-way struggle among generals, judges and politicians comes at a time when Pakistan has become increasingly chaotic. Taliban insurgents continue to roam the northwest, the economy is in dire straits and urgently needed reforms in education, health and other social sectors have been largely ignored.
From the standpoint of the United States, the deadlock has diverted the spotlight from military airstrikes that killed 26 Pakistani soldiers in November and brought the two countries’ troubled relationship to a new low. But it has also drawn attention away from a pressing priority of the United States in Pakistan: engaging cooperation here to help negotiate a peace settlement with the Afghan Taliban as a major troop withdrawal slated for 2014 draws near.
"In the midst of this institutional wrangling, nobody has a clear plan as to how politics or foreign policy are going to move forward, said Dr. Paula Newberg of Georgetown University, who has written a book about Pakistani constitutional politics. "Pakistan could easily have a much brighter future. But it gets itself worn down by these incessant disputes about where power lies."