The sordid tale of Pakistan's politics continues, unfolding in the same weird and bizarre fashion that has been its trademark for the past 60 years. With the Chief Justice (CJ) of Pakistan having become 'non-functional', another sordid chapter has been added to the judiciary's chequered history. Since the charges are sub judice and commenting on them would constitute 'contempt', one cannot but take note of the background against which the CJ was made 'non-functional' and the 'judicial activism' that came to be associated with his name since he became the CJ in June 2005.

By removing Justice Chaudhry in such a ham-handed manner, General Musharraf has politically damaged himself. The image is surely damaged when the 'removing' authority's validity is under challenge from the opposition, and the political challenge is also based on points of law that could have been placed before the Supreme Court (SC). There is also the 'logic' of removal, developed cynically in Pakistan over time because of the custom of using the judiciary to sort out political disputes, which must be considered. No one but the government is to blame for provoking the opposition and well-known jurists to cry foul.

Justice Chaudhry worked to clear the SC backlog. When he took over, a total of 25,808 cases, including appeals and petitions, were pending before the SC, which went up to 38,139 because of the new appeals. If the SC, by deciding over 20,000 cases a year reduced the backlog of cases to 10,389 in March 2007, some of the credit must go to Justice Chaudhry. The visible 'irritants' he offered the government, on such matters as Basant and wedding feasts, were too small to merit the punishment he has been meted out, unless of course the presidential reference has other more serious charges to press or political considerations to worry about. In view of his past judgements like reversing the sale of Pakistan Steel Mills, stopping the decision of the Capital Development Authority (CDA) to turn a public park into a mini-golf course, and taking suo motu actions to make some highly progressive and popular decisions concerning human rights, women, environment and especially the missing persons cases, Justice Chaudhry was becoming a nuisance for the government.

Prime Minister Nawaz Sharif, who was removed by President Musharraf, did not treat the judiciary well. His ministers threatened and bent the judgement of the judges at the Lahore High Court, and his supporters attacked the SC itself. Chief Justice Sajjad Ali Shah was sacked by dividing the judges between two benches, creating the dreaded situation in which the two benches were ready to condemn each other. President Musharraf should remember that when he took over in 1999, one reason the people celebrated Mr Sharif's dismissal was his shameful treatment of the judiciary.

Governor General Ghulam Mohammad began the process of destroying the foundations of Pakistan's constitutional and democratic structure, but he is not known to have interfered with the judiciary. That the Sindh Chief Court tried to undo the dissolution of the Constituent Assembly in October 1954 showed that the judiciary till then had acted independently. However, the Federal Court then came to his rescue. Indeed with his arbitrary actions that shook the very foundations of Pakistan, Ghulam Mohammad had laid down a perverse tradition that the military and civilian despots have used shamelessly to prolong and consolidate their rule by resorting to extra-constitutional methods. As the years wore on, the judiciary more or less acquiesced in its role as a subservient institution whose duty was to legitimise every authoritarian ruler's assumption of power, even if he acquired it by the means of a military coup, and to uphold all his actions that were often in utter violation of the fundamentals of law and constitutional propriety. That is how the Doctrine of Necessity became an intrinsic part of Pakistan's constitutional jargon, for instead of being forgotten as a one-time exception, this doctrine has been exploited by the generals, who often found - barring some exceptions - willing allies of the judiciary.

General Ayub Khan, General Ziaul Haq and General Musharraf all overthrew elected governments. While the Noon ministry, which Ayub and Iskander Mirza combined to dislodge by a coup, was not directly elected, it had nevertheless enjoyed a majority in the assembly and had a constitutional status, but General Ziaul Haq and General Musharraf overthrew governments that had come to power through general elections. Once in power, they defanged the courts by appointing 'yes men' to the apex judiciary to ensure uninterrupted legitimisation of all their actions. General Ziaul Haq was a class by himself. He not only got rid of five judges of the SC, he also sacked CJ Mohammad Yaqoob Ali. General Zia also made no secret of his fascist bent of mind by declaring publicly that the 1973 Constitution was a scrap of paper that he could tear up any time. The Provisional Constitutional Order (PCO) and the Revival of the Constitution Order were not at all what their imposing titles suggested; they were instruments of manipulation to perpetuate his rule, which he had assumed initially for 90 days to hold elections. Finally, the Constitution he left behind as his legacy had little resemblance with the Constitution enacted by the National Assembly in 1973. Instead, it had been stripped of its parliamentary character, all powers were concentrated in his person, and like General Musharraf today, he continued to remain both the army chief and the president till his death. The amended Constitution contained a new Article - 58(2b) - that authorised General Ziaul Haq to sack an elected government, which he did by dismissing the government of his protégé, Mohammad Khan Junejo.

The most shocking part of Pakistan's judicial history is the post-Zia period when the popularly elected prime ministers, Benazir Bhutto and Nawaz Sharif, showed scant respect for the concept of an independence judiciary and staffed it with 'yes men'. Where a judge or two refused to bend, they were replaced. It was also during this era when Nawaz Sharif was prime minister that the hoodlums of the ruling party attacked the SC premises and made the CJ flee for his life. Those leading the hooligans were later tried and given light sentences.

The came the March 9 episode, one is appalled to see the photograph of a general in uniform calling the country's CJ to his camp office as if the latter were a 'suspect' in a case of embezzlement, thus stripping him of the dignity to which he was entitled to by virtue of the office he held. Justice Chaudhry was then not allowed to return to his office and was escorted home.

While the SC will decide upon the case whose outcome will have profound consequences for the future course of law and constitution in Pakistan, the nation is appalled that those who impose accountability on others and imprison politicians are accountable to no one. Is not the nation justified in wondering why the men in khaki consider themselves above accountability? He who seeks justice must come with a clean hand is an old axiom. The generals seek to dole out justice to others, but they themselves are not prepared to present themselves before an impartial, civilian tribunal to defend their actions. It is for this reason that since General Zia's days, the word 'accountability' has acquired a strange connotation because it is hard to dispense with the notion that the military uses the shibboleth of accountability to persecute the regime's political enemies through what can be called inquisition courts.

A larger question is now Pakistan's image. The government has been very keen to project a soft image of Pakistan, and there is no doubt that this country gets bad press abroad often because the good here does not make news, while terrorism, honour killings and gang rapes regularly hit world headlines. But then the nature of the regime in power is a major factor in giving the country a good or bad image. The repercussions of the ouster of the CJ are going to be far-reaching and ugly. The president should have deliberated further if he thought the charges against the judge were serious enough to warrant a confrontation. From a purely political point of view, however, he might have considered taking action against Justice Chaudhry after the 2007 general election. After all, what was the big hurry? Unless, of course, one believes what the opposition is now saying: the government feared that judgements in the constitutional cases relating to the dual office of the president and his re-election by the current assemblies inevitably due before the court might go against it if Justice Chaudhry was the CJ. The treatment meted out to the CJ further added to the negative impression in the international community that Pakistan is just another Muslim country where the ruler's word is the law.

-- The Post