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UPDATE: January 16, 2013
This month, Pakistan's government is fending off a needless political crisis. On 14 January, Allama Tahir ul Qadri, a pro-military cleric turned revolutionary who once claimed to have a direct line to the Prophet Mohammad, marched into the capital with tens of thousands of supporters. He has since threatened to use whatever means necessary to implement his demands, which include the removal of the "corrupt" Pakistan Peoples Party (PPP)-led government, the disbandment of the current parliament, and the implementation of constitutional clauses that lay down strict financial, religious, and moral qualifications for election to parliament. The move follows on an unusual media blitz last month, during which Qadri took to the streets and airwaves to save the state by demanding the creation of a clean technocratic government backed by the army and the judiciary.
The timing couldn't be worse. In 2013, Pakistan is expected to undertake its first transition of power from one elected civilian government that has completed its tenure to another. When the current government came to office in 2008, reaching that milestone had seemed unimaginably difficult. All of Pakistan's previous transitions to democracy had been cut short by military takeovers. As the date for the handover neared, many Pakistanis had started to hope to avoid that scenario this time. As it turns out, though, even cautious optimism might have been too much. It appears that Pakistan's powerful military, aided by an aggressive Supreme Court, might well have just put a spanner in the works.
Some in the Pakistani media maintain that the United States is complicit in this week's chain of events, although there is no evidence that it is directly involved. Meanwhile, many writers, including the prominent rights activist Asma Jehangir, and opposition politicians say that the timing of Qadri's political surge, just a few months ahead of parliamentary elections, has Pakistan's Inter-Services Intelligence written all over it. According to Jehangir, "the [military] establishment is the director of Qadri's film. People of Pakistan have already watched such films in the past." In this view, Qadri, a resident of Canada, was imported to sow instability as a prelude a military attempt to establish a guided democracy, or at least, influence the composition and duration of the next caretaker administration. The judiciary, meanwhile, is playing helpmeet.
There is, as yet, no smoking gun linking Qadri to the Pakistani military or judiciary. Still, it cannot be a coincidence that Qadri has directed his indignation at the civilian government, while lauding the judiciary and the military as the only two institutions "performing their duties to fulfill the needs of the people," which, he says, are hamstrung by the government's corruption and inefficiency.
Certainly, military meddling would not be out of the ordinary: in the past, the military has intervened on account of tensions before or after elections. For example, in 1977, the military used unrest over an allegedly "stolen" election to overthrow the democratically elected government of Prime Minister Zulfiqar Ali Bhutto. Since 2008, when Pakistan made a formal transition to civilian government after a decade of General Pervez Musharraf's military rule, the generals have tried to protect their institutional interests from behind the scenes, preferring to at least maintain the appearance of supporting democracy.
For example, although the head of the army, Ashfaq Parvez Kayani has repeatedly stressed the military's respect for constitutional boundaries, he has had little qualms in crossing them. Last year, he defied the government by urging the Supreme Court to investigate a memo allegedly written by Hussain Haqqani, Pakistan's ambassador to the United States at the time, seeking U.S. intervention to fend off a coup. When Yousaf Raza Gillani, who was prime minister, accused the army of acting as "a state within a state," the generals warned the government of "grave consequences" and swiftly replaced the commander of the 111 brigade -- the one that has typically conducted coups -- hinting that a takeover might be in the works.
Interference in politics is a specialty of the judicial branch, too. As I wrote in July 2012, the Supreme Court, which is led by Justice Iftikhar Chaudhry, is not afraid to go public with its targeting of the PPP government. The month before, the court had ousted Gillani for contempt of court. On Monday, just as Qadri was threatening to forcibly overthrow the government, Chaudhry helped him along by ordering the arrest of Prime Minister Raja Pervez Ashraf for taking bribes in 2010 when he was minister for water and power. It is not entirely clear whether the chief justice is acting out of personal enmity toward President Asif Ali Zardari or doing the bidding of the military.
What happens next is an open question. Although the military has given no indication that it wants to get back in the governing saddle, it also has no love for Zardari or Nawaz Sharif, the head of the main opposition party, the Pakistan Muslim League Nawaz (PML-N) The generals would cohabit more comfortably with alternatives to those two, including the cricketer-turned conservative politician, Imran Khan. In all this, though, there is a silver lining for Pakistan. Despite their many political differences, the PPP and the PML-N have joined together to unequivocally oppose Qadri's demands and are agreed on the need for governments to complete their terms and hold elections. The two parties -- long enemies -- have also worked together to enact far reaching democratic reforms that will facilitate free and fair polls, including the appointment of a mutually chosen caretaker prime minister to oversee the process. There is little doubt that reforms like these and regular elections will be crucial to eventually undercutting the military's political influence. Whether the current PPP government survives this crisis or not, the party can play the "victim" card to woo voters the next time around. Although it seems unlikely that Qadri will prevail, his protest this week has revived fears that Pakistan could fall back into the all too familiar authoritarian trap guised as "real" democracy.
ORIGINAL ARTICLE: July 2, 2012
On June 19, Pakistan's Supreme Court charged the country's prime minister, Yousaf Raza Gilani, with contempt, disqualifying him from being a member of parliament and consequently unseating him from power. Gilani's crime? He refused to revive a money laundering investigation against his boss, President Asif Ali Zardari, who technically enjoys immunity from prosecution while in office. According to the country's constitution, only the election commission and the parliament itself have such authority. By simple fact, then, the Pakistani judiciary just pulled off a coup.
The timing was particularly suspicious. The Supreme Court's decision came on the heels of a bribery scandal that involved Arsalan Iftikhar, the son of the chief justice, Iftikhar Chaudhry. And because Iftikhar's accuser was Malik Riaz Hussain, a politically connected real estate tycoon with ties to the president, some have argued that the court sacked Gilani as revenge.
Some in the Pakistani opposition have applauded the move, arguing that judicial intervention is the only way to deal with the corruption of Zardari and his party. In their view, the judges' soft coup was far less insidious than those led by generals in the past, which have invariably led to full-blown authoritarian rule. But as Pakistan heads into an election year, the aggressive move has left the state's democratic foundations weakened, its judiciary less credible, and its military more powerful.
To be sure, the development serves as only another chapter in an ongoing saga. For years, the Supreme Court and the ruling Pakistan People's Party (PPP) have been at odds over the National Reconciliation Ordinance (NRO), an amnesty law instituted in 2007 by Pakistan's then president, General Pervez Musharraf, as part of a U.S.-brokered power-sharing deal with Benazir Bhutto, who was the PPP's leader in exile. In return for the government's withdrawal of corruption charges against Bhutto and Zardari, her husband, the party agreed to support Musharraf's re-election bid in October 2007.
But soon after, the Supreme Court, led by Chaudhry, suspended the NRO. Suspecting that the court had also made plans to rule his re-election bid unconstitutional if he stayed in military uniform, Musharraf suspended the constitution, imposed emergency rule, and sacked Chaudhry for the second time in a year. Chaudhry and 50 other judges who refused to take an oath of loyalty to Musharraf were put under house arrest.
In response, the country's bar associations, activists, political party workers, journalists, and ordinary citizens took to the streets. Bhutto was assassinated while leaving a rally at the end of December, and her party sailed to victory in elections held two months later.
One of the new government's first actions was to order the judges' release. But, fearful of Chaudhry's opposition to the NRO, the PPP leadership was not keen to restore him to his former seat. After another protest march, during which the country's top lawyers and members of the opposition Pakistan Muslim League-N (PML-N) threatened to lay siege to the parliament, the PPP reinstated Chaudhry in March 2009. Six months later, the Supreme Court, again led by Chaudhry, struck down the NRO and ordered the government to reopen the graft cases against Zardari.
Keen to wipe the stain of colluding with the military off the court, Chaudhry has pledged not to subvert democracy. (After all, he was a member of the court that legalized Musharraf's 1999 military coup.) But by liberally using his powers to protect the "public interest," he has now done just that: curtailed democracy and undermined the rule of law.
In the last few years, Chaudhry and his colleagues have injected themselves into almost every notable political and policy dispute, invariably deciding against the PPP government. Ruling on law and order problems, regulating municipal service delivery, and overturning bureaucratic appointments and promotions, the court has gone well beyond its mandate to interpret the constitution. Some of these interventions have addressed genuine public grievances, but many have undercut the day-to-day functions of government.
In April 2011, the Supreme Court effectively slashed parliament's newly acquired authority to approve the appointment of judges. Since, it has overturned the parliamentary appointments committee's decisions. And right after the Supreme Court ousted Gilani, a local court issued arrest warrants for Makhdoom Shahabuddin, the party's nominee for prime minister in the upcoming election, for his alleged involvement in a drug import scandal during his tenure as health minister.
It was no coincidence that the court was acting on a request from the army-controlled Anti-Narcotics Force. Indeed, the Supreme Court's thinly veiled hostility toward the civilian government stands in sharp contrast to the deference it shows the country's military. A prime example was the so-called Memogate scandal in the fall of 2011. Memogate centered on allegations made by Mansoor Ijaz, a U.S. businessman of Pakistani origin. He alleged that Husain Haqqani, Pakistan's ambassador to the United States and a Zardari confidant, had sought his assistance in drafting and sending a memo to Admiral Michael Mullen, the U.S. chair of the Joint Chiefs of Staff. The memo was a plea for U.S. intervention to avert an imminent military coup.
In return, the PPP government allegedly promised to appoint a U.S.-friendly national security team, stop Pakistan's intelligence services from supporting terror groups, and comply with International Atomic Energy Agency standards in its nuclear weapons program.
The PPP government denied any involvement with the memo, and Haqqani lost his job. Acting on a petition filed by the PML-N leader Nawaz Sharif, the Supreme Court, heeding the advice of the chiefs of the army and the Inter-Services Intelligence, or ISI, hastily formed a judicial commission to investigate. The commission ignored Ijaz's damning accusation that the military was, in fact, plotting to overthrow the civilian government around the time the document was written. Then it denied Haqqani the right to testify from abroad, despite his pleas that he feared for his life if he returned to Pakistan. But the judges allowed Ijaz to do so. The commission's final report absolved the PPP of any wrongdoing, but it confirmed the authenticity of the memo and accused Haqqani of disloyalty.
Some observers criticized the commission's transparently one-sided proceedings, in which commission members readily accepted questionable evidence provided by Ijaz while throwing Haqqani's evidence out on technical grounds. Haqqani's counsel, Asma Jahangir, arguably the country's foremost human rights activist, boycotted the commission, noting that she had no confidence in its fairness.
At the same time, the Supreme Court has continued some investigations against the ISI. These include an old corruption case and ongoing missing-persons investigations that date back to the time of Musharraf. It has ordered the ISI to produce suspects it has detained in court and to either charge them legally or let them go. The Frontier Corps' "kill and dump" operations against Baluch nationalists have similarly come under scrutiny. But senior military officers, including the ISI chief and the inspector general of the Frontier Corps, continue to evade the Court, not fearing that they will be charged with contempt as Gilani was.
Ultimately, the judiciary's ostensible slant toward the military and certain right-wing parties poses an ongong threat to Pakistani democracy. The judiciary validated each of the previous military takeovers in the country's history. Now, with a soft coup under their belts, the judges have created another bad precedent. They have legitimized one more non-democratic method of changing governments.
With the Zardari government continually fighting for its survival, resolving Pakistan's pressing problems takes a back seat once again. Chronic power shortages have crippled industry, alienated ordinary Pakistanis from the government, and fomented social unrest. Instability could further erode the state's resolve to tackle terrorism, which would further complicate the normalization of its ties with the United States.
To play a positive role, the judges need to do their part in strengthening the Pakistani state by striking a better balance between judicial activism and restraint. In the tempting rush to teach the allegedly corrupt PPP government a lesson, many in Pakistan's rowdy news media and opposition parties are egging the judiciary on. But pulling the carpet from under the government's feet is not in anyone's interest.
Instead of insisting that Gilani's replacement, Prime Minister Raja Pervez Ashraf, reopen the corruption cases against President Zardari, the Supreme Court should let the democratic process continue until elections, which are set for the spring. Only if it tolerates and respects the mandate of the two other branches of government can the judiciary actually help make democracy the only game in town.