Ever since Pervez Musharraf took over Pakistan's government in a coup last fall, the general has governed the country in a strange sort of limbo. He is a military ruler, but he refuses to declare martial law. He has held the constitution in abeyance, but he tells the courts they should operate as usual. Last week, things became less murky--but more gloomy--when Musharraf issued a midnight order to the country's highest-ranking judges to swear allegiance to his 100-day-old regime. Supreme Court Chief Justice Saiduzzaman Siddiqui and five colleagues refused. They were sacked. Elsewhere in the country, seven other judges refused to take the oath and similarly lost their jobs.
The judges' resistance deals a serious blow to the military government. Most Pakistanis have given Musharraf the benefit of the doubt since he took power. But by clamping down on the judiciary, he has unleashed a barrage of criticism from jurists, human rights activists and the press. The general's Provisional Constitution Order No. 1, issued immediately after he took power, suspended the parliament, held the constitution in abeyance and gave the military government temporary legal backing. The loyalty oath--similar to one required in 1981 during the martial law regime of military dictator Zia ul-Haq--required allegiance to the provisional order rather than to the constitution. I was told time and again that the court will work under the constitution, former Chief Justice Siddiqui told Time. General Musharraf gave me his full assurance he would not disturb the courts. It was not possible for me to take the oath. Experts say irreparable harm has been done to the legal system. The institution of the judiciary has received a setback it will probably not recover from, says Abdul Hafeez Pirzada, architect of Pakistan's 1973 constitution. There is no one left to protect the constitution because all the judges have taken the oath to protect the new regime, laments Rashid Rizvi, a Sindh high court judge who refused to swear allegiance to the government. In all, 89 of Pakistan's 102 Superior Court judges took the oath.
The order didn't play well abroad. General Musharraf has removed his actions from judicial review, said U.S. State Department spokesman James Rubin. This is contrary to the path of restoration of civilian rule the general pledged to follow when he took power. Musharraf, however, seemed blithe. Whatever has happened is in the interests of the country, he told reporters after the oath-taking ceremony in Islamabad. Later, the government issued a statement dismissing concerns about the judiciary's independence. The basic structure, functioning and authority of the judiciary are entirely unaffected by the taking of a fresh oath, it said.
But it would be impossible for the courts to be unaffected. Historically, Pakistan's judiciary has been plagued by corruption, official interference and internal divisions. It has learned the hard way to cooperate with whatever government happens to be in power: whenever the court has asserted itself, it has generally been punished. In 1997, Chief Justice Sajjad Ali Shah was ousted after wrangling with then-Prime Minister Muhammed Nawaz Sharif. The judge wanted to try Sharif for allegedly making derogatory remarks about the judiciary--which is illegal in Pakistan. In recent weeks, new tensions have emerged between the military government and the judiciary. A December decision by a federal Shariah court, which administers Islamic law, held that Pakistan should adopt elements of a regressive Islamic banking system. This reportedly displeased the military rulers because it would hamper efforts to help Pakistan's crippled economy back on its feet. The rulers were also upset by an anti-terrorist court judge's refusal to hear the government's criminal case against ousted Prime Minister Sharif because intelligence agents were present in the courtroom. The trial was transferred to a lower-ranking judge and began last week. When news of the judges' refusal to take the oath arrived in the courtroom, Sharif and his co-defendants smiled.
Observers found the timing of Musharraf's oath order suspect, coming on the same day Sharif's trial began in Karachi and less than a week before the Supreme Court was scheduled to hear the first of several cases challenging the military government's authority. Musharraf, skeptics say, wants to ensure that the courts rule in his favor when the cases are heard. It's unclear now whether the cases will come up as scheduled before the new Supreme Court, under the new Chief Justice Irshad Hassan Khan, or whether they will be postponed, perhaps indefinitely. If they are heard, We already know the outcome, says human rights lawyer Asma Jehangir. The judiciary is subjugated to the whims of army dictates.
The controversy is helping fuel skepticism among Pakistanis about Musharraf's intentions. If the judiciary is under fire, critics wonder whether the press and human rights could be next. If further crackdowns ensue, warned an editorial last week in Pakistani daily The Nation, the regime will be branded by its critics as a total dictatorship. Even if such dire predictions do not come true, one thing is clear: Musharraf's honeymoon is over.
With reporting by Ghulam Hasnain/Karachi