ISLAMABAD, March 9: Amid an early spring, Pakistan's judiciary on Friday got one of the hardest blows it suffered for decades from both military and civilian governments, with a presidential order halting apparent judicial activism of a chief justice. Supreme Court Chief Justice Iftikhar Mohammad Chaudhry became a respondent and what a government minister called "non-functional" after President Pervez Musharraf levelled charges of misconduct and misuse of authority against him to be investigated by a Supreme Judicial Council.
It is the first time in nearly 60 years of Pakistan's life that such a step has been taken against the country's top judge, although the judiciary has had a chequered history that saw it only occasionally standing up to assaults and often acquiescing to the biddings of strong rulers at the cost of its credibility.
Most disappointing has been the judiciary's endorsement of all military takeovers under a contrived "law of necessity" while the coup-makers remained in power. This even led to a near consensus among political parties and bar associations in recent years not to pose any legal challenges to perceived constitutional violations before the provincial high courts or the Supreme Court.
Justice Chaudhry, who took office in June 2005 for a tenure that could last eight years before reaching the retirement age of 65, had been openly calling for a restoration of the judiciary's lost credibility and ushered in what was seen as judicial activism by taking up public complaints on his own initiative about issues ranging from human rights violations such as disappearances of activists blamed on security agencies to kite-flying and expensive wedding meals.
A nine-judge bench headed by him stunned the government in August last year by scrapping the privatisation of the Pakistan Steel Mills that it said was sold in "indecent haste" and in violation of rules, giving the opposition parties a lot of ammunition to bring a no-confidence move against Prime Minister Shaukat Aziz.
Coming at the beginning of a crucial year for the country's political future, the presidential action, officially stated to be taken on the advice of Prime Minister Shaukat Aziz, is likely to spark protests from opposition parties and the legal community, with some critics already interpreting the move as a coup d'etat or a "frontal attack" against judiciary.
Although hardly any government of the country has been happy with the judiciary, often seen as an obstacle to the executives’ usual arbitrariness, open assaults on superior courts began during the (1958-1969) decade of the country's first military ruler, Field Marshal Mohammad Ayub Khan, who was accused of personally interviewing prospective judges before their appointments after getting a taste of the courage of legal giants like late Justice M.R. Kayani.
Though Ayub Khan's successor, Gen Yahya Khan did not have much trouble with judges, the executed former prime minister Zulfikar Ali Bhutto, who held office during 1972-77, was also accused of pressurising the superior courts by appointing an anti-corruption committee for the judiciary and reducing the judges tenures of office.
But the most unsettling period for judiciary was Gen Mohammad Zia-ul-Haq’s 11 years (1977-1988) when he used his martial law powers to sack a Supreme Court Chief Justice, Justice Mohammad Yaqub Ali, so he could not give a legal relief to Mr Bhutto during his controversial conspiracy-to-murder trial and then got rid of five Supreme Court judges who refused to take a new oath of office under a controversial Provisional Constitutional Order.
Former prime minister Benazir Bhutto earned a lot of ire of the legal community, during her second tenure (1993-96), by inducting some party loyalists as judges in the superior judiciary -- a move that was later undone by the Supreme Court in the famous "Judges Case" initiated by Al-Jihad Trust of a Rawalpindi lawyer, Habibul Wahab Al-Khairi.
But much worse was to happen during the second tenure of her rival, former prime minister Nawaz Sharif (1997-99), when ruling party activists raided the Supreme Court in November 1997 in a power struggle that forced then president Farooq Ahmed Leghari to resign and saw the removal of Justice Sajjad Ali Shah as the chief justice by his own court colleagues whose majority annulled his appointment for not conforming to the seniority criterion of the Judges Case.
The move against Justice Chaudhry came on the heels of an intriguing letter addressed to him by a Supreme Court lawyer and a well-known television compere, Naeem Bokhari, who quoted his professional colleagues as describing the chief justice's court room as a "slaughter house" and advising him to make amends "before a rebellion arises among your brother judges, ... before the bar stands up collectively and before the entire matter is placed before the Supreme Judicial Council".
Mr Bokhari's prediction proved partly correct with the presidential action, which had also been speculated in anonymous text messages received on mobile phones by politicians and journalists.
The move has also led to speculation about the future role of the Supreme Court if legal challenges are posed to a postponement of general elections due this year for a year, as threatened by some ruling party members, with President Musharraf opting to seek election for another term from the present parliament and provincial assemblies while remaining in army uniform.
