DECLAN WALSH
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 Pakistans 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 Pakistanand the United Statesurgently needs stability in Islamabad to face a dizzying array of threats.
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 Yousuf 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 Pakistans 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 Ijaz is due to give evidence. The fact that the courts have become the arena for such lurid political theatre 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 psychethat only we are clean,and capable of doing the right thing.
The courts supporters counter that it is reinforcing democracy in the face of President Asif Ali Zardaris corrupt and inept government.
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 Chaudhry shocked his patron and his country seven years later with decrees that challenged General Musharrafs 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 FBI and CIA. The privatisation 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. Zardari hesitated to reinstate 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,Zardari relented and Justice Chaudhry returned to the bench.
Within months,the Supreme Court had cleared the way for the possible prosecution of Zardari in a Swiss corruption case dating to the 1990s. The government cited Zardaris 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 McDonalds 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 courts populist bent has infuriated the government but won cheers from urban,middle-class Pakistanisthe same people who had supported the lawyers drive against General Musharraf.
But the courts activism has also taken many erratic turns.
The gravest charges,though,swirl around the memo scandal. The furore,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 December 30 at the direct request of the army chief,Gen Ashfaq Parvez Kayani,and the ISI director general,Lt Gen Ahmed Shuja Pasha,who harbour little love for Zardari. Also,the court ignored other claims by Ijaz that the army secretly sheltered bin Laden,and sought outside support to mount a coupacts that,if proven,could be equally treasonous.
Suspicions about the courts impartiality were renewed last Friday,when Chaudhry ordered the government to disclose whether it intended to fire General Kayani or General Pashaeven though such decisions are normally the governments 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.