Duhaime's LawMag

Nov 4

Written by: Lloyd Duhaime
Sunday, November 04, 2007 8:18 PM

Pakistan declares martial law, a term known by jurists as the ultimate oxymoron.

Martial law is, by definition, the supression of law.

Martial law entails a surrender of government and of law to the military.

The theory is it is an extraordinary and temporary stop-gap measure designed to stop a growing tide of anarchy and to ensure order in the aftermath of a natural calamity (see, for example, Disastrous Justice: Keeping the Four Horsemen At Bay).

Pakistani government officials, in charge of a state armed with nuclear weapons, aimed their wrath first at officers of justice, judges and lawyers.

The India Times reports that Aitzaz Ahsan, an outspoken lawyer, has been arrested.

The crisis arises as a result of the attempted dismissal of the 59-year old chief justice Iftikhar Muhammad Chaudhry (pictured, left) in March of this year. That attempt at judicial interference was vigorously opposed by Pakistani lawyers, led by Ahsan, who organized a boycott and a protest march.

President Musharraf feared corruption charges related to himself might be favourably entertained by the Court so he summoned the Chief Justice to a private meeting. Musharraf did not like the answers he got so he demoted Chaudhry, claiming that the chief justice himself had misused his office for personal benefit, in particular in demanding too many perks.

As the deposed chief justice began his defence of charges made against him, one of his witnesses,  a senior Supreme Court clerk was murdered on May 14th.

On June 17th, armed men believed to be pro-Musharaf, attacked the chief justice nephew’s home, only three days before Chaudhry was reinstated by judgment of the Supreme Court.

On September 10, 2007, Chaudhry spoke on the occasion of the opening ceremony of the judicial year:

“The preceding year was extraordinary. It was extraordinary for the whole nation, and more so, for the judiciary. It was extraordinary particularly for this Court, as it was confronted with an unusual situation. Therefore, extraordinary efforts were required to face the challenge. The Court stood its ground and faced the challenge. The judiciary showed exemplary unity. The members of the bar demonstrated unparalleled unity and solidarity. The civil society backed the legal fraternity. A new chapter in the evolution of country’s judicial system was written. Public trust and confidence in the judiciary was restored and enhanced. Public expectations of the system of administration of justice have equally enhanced. This is what is generally referred to as the “defining moment” in history.”

“The Constitution guarantees fundamental rights and freedoms to citizens. Their enforcement is an obligation cast on the State. These fundamental rights and freedoms are sacrosanct. They are sublime. Their violation or abridgment is a serious matter. The Constitution casts the responsibility on the superior Courts to enforce such fundamental rights. It is, therefore, an honour and a privilege, as well as, a duty and obligation, to enforce such rights. These rights guarantee individuals rights to life, liberty, property, equality, social, economic and political justice and freedom of thought, expression, movement and association. These are fundamental issues and civilized societies take a stand on fundamental issues and problems. As an organ of the State and obligated to enforce fundamental rights, the judiciary has to play its role. It has to dispense justice. It has to take on challenges upfront. It has to take up cases and decide them on merit, in accordance with the law. In short, it has to do justice. It has to do justice even though heavens may fall. This Court, therefore, will never retract from its designated role of deciding cases, on settling disputes and dispensing justice.”

Musharraf had been defied and opportunists moved in.

In the intervening period, air transportation was disrupted when engineers went on strike. Taliban forces conducted terrorist strikes within Pakistan attempting to start a violent Muslim campaign against Musharraf.

The former president, Benazir Bhutto, returned to the country and within hours, narrowly escaped an attack on her life which left 130 people dead.

But the lightning rod for Musharraf appears to be the country's justice system as on Halloween Day, the Supreme Court announced it would be proceeding with a hearing on charges against Musharraf.

On the previous day, Prime Minister Shaukat Aziz was criticized by Chaudhry during a contempt case against him.

Contempt cases are always sensitive matters for the courts and judges as they are themselves breeding grounds for abuse of judicial powers and "power trips". After making his comments, Chaudhry had adjourned the case against Aziz to November 8.

In a well-planned and executed suppression of democracy, telephone service was interrupted and private television channels were taken off the air. Internet communication may have been cut-off as well (our emails to the chief justice and the court registrar have yet to be returned). BLoggers may have in-tracks other can't find, as blogs have started to raise hell as only they can (see, for example, "More on the Pakistan Situation" at poliblogger.com/?p=12756)

The Times of India reports that Supreme Court “immediately set aside the presidential order declaring emergency” while the government announced that Chaudhry has again been dismissed and confined to the Supreme Court building. The residences of the Supreme Court judges have also been “secured”.

Just before he was arrested, Ahsan was able to get a message to Reuters which will not likely sit well in martial law:

"They have served me a detention order for 30 days. One man has taken (an) entire nation hostage. Time has come for General Musharraf to go.”

The world waits and holds its breath. Stability in Pakistan is considered a core element world peace. Albeit an imperfect but apparently solid democracy adjacent to both Iran and Afghanistan, it juggles a vibrant economy and public safety with constant dispute with its neighbour India.

For example, the question is made as to whether Turkey will seize the moment of this international distraction to enter Iraq attack Kurdish opportunists?

As of 9 a.m., Pacific standard Time, 3-NOV-2007, the Pakistani cabinet was meeting likely to rubberstamp President Musharraf's decree of martial law followed by a television address by the President.

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References and further reading:

• June 8, 2007, Affidavit of Lt Gen (R) Hamid Javaid, son of Muhammad Ashraf, Chief of  Staff to the President of Pakistan published at thenews.com.pk/daily_detail.asp?id=59683
• November 3, 2007, “Musharraf Imposed Emergency in Pakistan”, the Times of India
• Address by Mr. Justice Iftikhar Muhammad Chaudry, chief justice of Pakistan, September 10, 2007, Supreme Court building, Islamabad, Pakistan published at supremecourt.gov.pk/sub_links/pr-1/Cermony_of_Judicial_Year_2007-2007.htm.
• October 30, 2007, “Pakistan PM Ignored the Top Court”, BBC News

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