|Caption: Chief Justic Chaudhry|
The tussle between the judicial, executive and legislative branches is an old one. Competing loyalties, political interference and plain corruption have challenged the independence of the judiciary in most countries of Southasia. Yet when General Pervez Musharraf removed Chief Justice Iftikhar Muhammad Chaudhry for “misuse of office” on 9 March, he probably did not expect the groundswell of protest that was to follow. Demonstrations soon spread from lawyers and the media to human-rights activists and the general public.
The ousted chief justice quickly became a veritable symbol of resistance to executive high handedness. This was particularly so because the dismissal came in the wake of Chief Justice Chaudhry having taken up cases that Islamabad would rather have swept under the judicial carpet: disappearances (the polite term for those abducted and probably killed by the military intelligence agencies), and the high-level corruption in the Pakistan Steel Mills case. There can be no disagreement on enhancing judicial accountability, but such an obviously politically motivated move is less about keeping the judiciary under the scanner than about removing a chief justice who refused to be a puppet (so goes the received wisdom in Pakistan). The attack on Pakistan’s judiciary – and the attempt to control independent institutions – must be viewed with alarm, particularly given the general elections announced for later this year.
As the lawyers’ protests spilled into the streets, police barged into the Islamabad office of Geo TV, which had been airing regular coverage of the protests. There, they beat up journalists, broke windows and computers and lobbed teargas into the newsroom. Just a day before, the popular and controversial show ‘Aaj Kamran Khan Ke Saath’ had been banned, after it had covered the chief justice’s removal and the subsequent protests. Are we expected to believe that Gen Musharraf did not order the assault (as he claims), or is the general losing his grip?
At deadline, Chief Justice Chaudhry refuses to resign, demanding that the hearing by the Supreme Judicial Council into his alleged abuse of power is conducted publicly. Even so, Justice Rana Bhagwan Das, next in line to be acting-Chief Justice, is waiting in the wings. While Das’s appointment would certainly notch up the score on minority welfare, one wishes that the only Hindu judge to have risen to the Supreme Court level in Pakistan had been given the honour under less-controversial circumstances.
Such shenanigans have been witnessed elsewhere. In her drive for a compliant judiciary in the years preceding the 1975-77 Emergency, Indira Gandhi superseded senior judges and put in place her own appointees, on the plea of setting up a ‘committed judiciary’. Likewise, Gen Musharraf would like others to believe that he is on a crusade for a clean judiciary – and hence the ousted Chief Justice Chaudhry. Given the high constitutional and moral authority vested in the judiciary, judges refusing to occupy positions made vacant after unfair removals of their predecessors might contribute to the independence and stature of the judiciary. A Lahore High Court judge and four other civil judges have already resigned to protest Gen Musharraf’s interference. Will Justice Bhagwan Das also stand up? As we go to press, the latest indications are that he will not.
Under the scanner
Meanwhile, the Indian Supreme Court has also been seeing its share of drama. On 16 March, with tears in his eyes and folded hands, Justice A R Lakshmanan recused himself from hearing a case pertaining to Uttar Pradesh Chief Minister Mulayam Singh Yadav’s disproportionate assets. This unprecedented spectacle came mere hours after the receipt of an anonymous letter faxed to the tearful judge’s residence. In choked tones, his lordship said that he was “very disturbed” over the contents of the mysterious letter, which apparently contained none-too-subtle threats. While this Caesar’s-spouse approach may be laudable, it is clearly no substitute for a transparent procedure whereby a judge shows himself to be accountable to the public.
Over the past decade, initiatives such as the Committee on Judicial Accountability (COJA) have emerged to counter the alarming corruption in the Indian judiciary, as well as the misuse of powers of contempt of court and immunity. More recent moves go beyond monitoring corruption, and attempt to make the judiciary answerable to the people at large, rather than to the ruling elite. The National Convention on Judicial Reforms, held in Delhi on 10-11 March, brought together public-minded lawyers, civil-rights activists, people’s movements and consumer organisations, with a view to “reclaim the judiciary by having it restructured in accordance with the needs of the common people”.
Meanwhile, across India’s northern frontier, if the alleged doings of the Chief Justice of Nepal, Dilip Kumar Poudyal, are anything to go by, it is none too soon for Nepal to set in motion a similar process. Recorded phone conversations obtained by a Kathmandu newsmagazine in mid-March supplied evidence of corruption at the highest level, in a case relating to the ‘fixing’ of hearings for a price. As the country proceeds with demolishing old institutions of state and rebuilding more suitable ones, the judiciary too must be put under the scanner. An independent judiciary, free from executive and legislative control, is undoubtedly a prerequisite for democratic governance and maintenance of rule of law, in Nepal and elsewhere.