Pakistan's emboldened judiciary threatens government stability

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By Karin Brulliard
Washington Post Foreign Service
Wednesday, October 13, 2010

ISLAMABAD, PAKISTAN - After this country's then-military dictator deposed the Supreme Court chief justice in 2007, a boisterous movement of protesting lawyers took to the streets and ushered in the return of democracy. Now that same court may be poised to bring about a premature end to Pakistan's elected government.

Since its December judgment striking down an amnesty that shielded President Asif Ali Zardari and other officials from old criminal allegations, the top court has pressed the government on corruption, in particular a dated money-laundering case against Zardari. The stakes have risen as repeated government delays have stoked frustration within the army and the political opposition. Another showdown is scheduled for Wednesday, when the court could hold the prime minister in contempt or indicate that it will reconsider Zardari's presidential immunity from prosecution.

The standoff has cemented the Supreme Court's position as a central player in Pakistan's nascent democracy. But it has also highlighted questions about the solidity of that system.

To many here, the drama represents progress: In a nation with a history of military coups, an independent judiciary has emerged as the major threat to the unpopular government. To others, including some government critics and lawyers' movement stalwarts, the court and its chief justice are on a warpath against Zardari that threatens a fragile democracy that needs an elected government - even a bad one - to complete a term in office.

"This judge and the court have embarked upon politics," said lawyer Khurram Latif Khosa, whose father, also a lawyer, advises Prime Minister Yousaf Raza Gillani. "The lawyers who were chanting slogans in their favor are now burning effigies of their idols."

Pakistan's stability is vital to the United States, which depends on this South Asian nation to support the war in Afghanistan and combat a vigorous Taliban insurgency on its own soil. U.S. officials express concern that the government's foot-dragging is weakening its credibility and distracting it from urgent issues such as the fallout from recent flooding and a collapsing economy.

Some analysts say the standoff is unlikely to imperil the democratic order. They call it just another act in the performance art of Pakistani politics, in which protagonists jockey for power while the masses await leadership that will improve their lives. The government insists that the cases against Zardari were politically motivated and that a hostile media are sensationalizing the court's wrangling.

From 2007 to 2009, scores of lawyers rallied for the restoration of Chief Justice Iftikhar Mohammed Chaudhry. He was removed by military dictator Pervez Musharraf but not restored by Zardari's civilian government until several months into its administration.

The lawyers' movement dissolved after it achieved its goal, and the lower judiciary is still plagued by complaints about corruption, sluggishness and bias. But the Supreme Court has surfaced as one of Pakistan's most respected institutions. After decades of deference to presidents, prime ministers and, especially, military rulers, it has doggedly pursued cases involving the Zardari government.

"That the problems of governance were not highlighted in the past seems to suggest that the court is more aggressive on a democratic government than it was on an authoritarian government," said Munir Malik, a former president of the Supreme Court Bar Association. "But that's the way to move forward."

The court has also gained popularity by regularly taking up the grievances of ordinary citizens, often after Chaudhry has read about them in the newspaper. Small and thickly mustached, Chaudhry ranks in polls as one of the nation's most esteemed figures.

"He is the only person standing firm against the unlawful practices of the government," said Ibrahim Rasheed, among a group of lawyers sipping tea recently at the Islamabad bar association office.

On Monday, after rejecting a government plea to postpone Wednesday's hearing, Chaudhry and his colleagues moved briskly through the morning docket. One case involved a man who said policies at the federal medical institute where he worked had unfairly blocked his promotion, while another dealt with "lady health workers" allegedly being paid less than minimum wage by a provincial health department.

Later, the judges harangued the Islamabad police chief over a failure to arrest a suspect in the months-old slaying of a former attorney general - an "eminent man," in the words of one justice, Khalil Ramday.

Court detractors, who include Pakistan's top human rights lawyer, point to the court's cap on the price of sugar and the nullification of a carbon-tax law as crowd-pleasing but overreaching rulings.

The court has not taken kindly to such grumbling. Last week, after a federal minister accused it of activism and interference, the court released a statement criticizing "unwarranted and uncalled for comments" on its judgments.

Some legal experts say they are disturbed that the court rarely pursues matters involving non-ruling-party politicians or the military establishment. Under Musharraf, Chaudhry was a vocal advocate for cases involving suspects who disappeared, allegedly at the hands of Pakistan's intelligence services. The cases have made little progress since last year.

"The court can be faulted not for what it is doing, but for the omissions," said Babar Sattar, a constitutional expert who supports the court's efforts to pursue government corruption cases.

The high court has focused on 13-year-old allegations that Zardari, the widower of former prime minister Benazir Bhutto, stashed $60 million in kickbacks in Swiss bank accounts. Swiss authorities closed the case in 2008, after a 2007 Pakistani amnesty deal.

When the Supreme Court nullified that amnesty, it instructed the government to write a letter informing the Swiss authorities about the development. A Swiss prosecutor has since noted publicly that Zardari has presidential immunity, and many Pakistani legal experts say the government could calm the judiciary by simply sending the letter.

The government says it should not have to do so.

Legal experts say that defiance could prompt the court to hold the prime minister or the law minister in contempt or trigger it to review the constitutionality of Zardari's immunity. Either could threaten the Zardari administration, endangering the coalition it depends on to govern and - in an extreme scenario - spurring the military to seize control.

Special correspondent Shaiq Hussain contributed to this report.


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