publications

III. Background

The Lawyers’ Movement for Judicial Independence

On March 9, 2007, President Gen. Pervez Musharraf summoned Supreme Court Chief Justice Iftikhar Muhammad Chaudhry to his office and effectively dismissed him for alleged “misuse of office.” The real reason was because the court was starting to demonstrate its independence from the executive. Justice Chaudhry refused to resign, triggering mass nationwide protests against Musharraf for several months. Government attempts to suppress a movement led by lawyers to restore the chief justice were often violent. Security personnel beat lawyers, opposition activists and journalists covering unfolding events.1 The political crisis deepened on May 12, when 42 people died in violence instigated by activists of the Mutahedda Qaumi Movement (MQM), a major coalition partner in the Musharraf government, trying to prevent Chaudhry from entering Karachi to address the Sindh High Court Bar Association.2 In the face of relentless country-wide protests by lawyers and human rights activists, joined later and only half-heartedly by opposition political party activists, Musharraf temporarily backed down and the Supreme Court restored the chief justice to office on July 20.3  

But the court that restored Chaudhry as its chief justice had been fundamentally transformed. For the first time in Pakistan’s history, the country’s senior judiciary as a group saw itself not as an ally and enforcer of the executive but beholden to the rule of law and the constitution—the basis on which bar associations across Pakistan had agitated for Chaudhry’s reinstatement. 

Pakistan’s lawyers, highly articulate and politicized, have played an important role in every major democracy movement the country has witnessed. However, the movement to restore Chief Justice Chaudhry to office broke with precedent and presaged a fundamental shift at several levels. First, lawyers led by their local bar associations and centrally by the Supreme Court Bar Association, provided the leadership of the campaign to restore Chaudhry and by extension of the constitution. In the process, they gained public support directly without the aid of political parties. Indeed when opposition political parties, sensing the wide appeal of the campaign, sought to join in, they were welcomed, but only in a subsidiary, supporting role. This is particularly noteworthy, given that many of those lawyers pivotal in what became known as the Lawyers’ Movement for Judicial Independence, hold important positions in political parties.4 Meanwhile, Pakistan’s political parties, particularly the Benazir Bhutto-led Pakistan Peoples Party, attempted to use the lawyers’ agitation to negotiate a transition to democracy with Musharraf.

The lawyers’ campaign to restore the chief justice grew to become a campaign for the restoration of constitutional rule, and by extension for the ouster of Musharraf because of his repeated attacks on the rule of law. Lawyers used the country-wide structure and organization of bar associations to mobilize effectively, and, unlike recent political opposition leaders, they proved impervious to coercion, blackmail or co-option. They used the safe-haven of the courts—customarily the police can only be invited in by court authorities—to mount effective protests against Musharraf.

The spectacle of high-profile lawyers agitating for the independence of the judiciary, and a return to the rule of law, emboldened the media to provide extensive coverage of not just the agitation but ensuing retaliatory violence by police and plainclothes intelligence personnel. Further, prominent lawyers succeeded in mobilizing segments of society hitherto considered apathetic, depoliticized, or simply disinterested—the urban privileged. By bringing the judiciary over to the side of the rule of law, Pakistan’s bar associations had achieved what its political parties had singularly failed to do: effect a deep schism within the Pakistani ruling establishment, raising serious questions about the lack of accountability in governance as well as mobilizing public opinion on the side of transparency, accountability and the rule of law.

Military rule, impunity for human rights abuses, and most significantly, Musharraf’s very continuation in office—the cornerstones of the Pakistani military’s informal internal compact on governance—had been more fundamentally threatened by a few thousand lawyers  in eight months than by the combined efforts of its political opposition over eight years.

As a movement for constitutionalism and the rule of law, the lawyers’ movement based its arguments and sought both physical and political security in the protections enshrined in the constitution. Musharraf’s decision to suspend the constitution on November 3 must be seen in this context. Its purpose was to destroy legality in order to muzzle those who saw it as a route to change.

The suspension of fundamental rights and constitutional protections served a very clear purpose: it allowed for the evisceration of the judiciary as an independent institution, the transformation of courthouses into battlefields where lawyers were tear-gassed and beaten by police and intelligence officials with impunity. And it allowed for the arbitrary detention and humiliation of those who had sought strength in due process of law.

On November 18, Peter Beaumont reporting for The Observer described the government’s retaliation:

Retribution is being meted out on a massive scale… The aim of the state of emergency has been largely to humiliate the opposition. …Reports of humiliation and abuse are common from those who, because of age or good connections, have been let go or transferred to house arrest… Even those who have thus far avoided arrest are not immune to the threats… Last week The Observer listened as a warning was delivered to a prominent civil society activist, who asked to remain anonymous, about how a relative had been sent with a message from Pakistan's intelligence organization, the ISI, warning: 'Shut up or else.' …5

The judiciary and Musharraf

For much of the country’s history, the Pakistani judiciary has remained beholden to executive authority. It frequently sought refuge in, and developed, the “doctrine of state necessity” derived from the legal theory of the Austrian jurist Hans Kelsen and predicated on the concept of a Grundnorm, a hypothetical norm, on which all ensuing tiers of the legal system are based.6

The Supreme Court repeatedly applied this doctrine to constitutional law in order to legitimize successive extra-constitutional seizures of power, including Musharraf’s 1999 coup. On October 15, 1999—three days after the coup, Musharraf promulgated Provisional Constitution Order (PCO) Number 1 of 1999,7 replacing the 1973 Constitution. In January 2000, he ordered the judiciary to take a new oath of office under the PCO.8 Six judges who refused to take the oath were dismissed from office, and in May 2000 the reconstituted Supreme Court legitimized Musharraf's military coup under the doctrine of state necessity.9

On December 31, 2003, Pakistan’s parliament, formed the previous year in a controversial election and packed with Musharraf’s supporters, passed the 17th constitutional amendment effectively legitimizing Musharraf’s decrees since his seizure of power and restoring the constitution.10 However, the amendment, at best, only allowed Musharraf to hold the dual office of president and army chief until the expiry of his presidential term deemed to have begun in 2002.11    

Subsequent to the restoration of the constitution, in due course, on May 7, 2005, Iftikhar Mohammad Chaudhry, the senior-most judge of the Supreme Court, was appointed Chief Justice by Musharraf.12

On June 23, 2006, a nine-member bench of the Supreme Court headed by Chief Justice Chaudhry annulled the sale of the Pakistan Steel Mills, the country’s largest industrial unit, to a three-party consortium. Authored by the chief justice, the judgment stated that the entire exercise reflected “indecent haste” by the Privatization Commission and the Cabinet Committee on Privatization (CCOP) headed by then Prime Minister Shaukat Aziz—previously a private banker based in New York with no prior political experience first plucked from obscurity by Musharraf to be his finance minister in 1999. The judgment stated: “This unexplained haste cast reasonable doubt on the transparency of the whole exercise, and reflects CCOP’s disregard towards mandatory rules and materials, essential for arriving at a fair reference price… A constitutional court would be failing in its duty if it does not interfere to rectify the wrong, more so when valuable assets of the nation are at stake.”13

The annulment of the Steel Mills privatization marked a watershed in relations between the Supreme Court and the Musharraf government, and was widely regarded as an unprecedented act of defiance.

In January 2007, the Human Rights Commission of Pakistan, an independent NGO, filed a petition on behalf of the families of the “disappeared”—terrorism suspects and other opponents of the government—who had allegedly been taken into custody by Pakistan’s feared Inter Services Intelligence (ISI) agency and other military intelligence agencies, yet whose detention the authorities denied.14 The chief justice repeatedly summoned government officials and ordered them to produce the “disappeared” persons. Research by Human Rights Watch indicates that some cases of enforced disappearances in Pakistan have involved both the ISI and US intelligence officers, with suspects in the “global war on terror” arrested without warrants and interrogated by US law enforcement agents in illegal ISI detention centers.15

On March 9, 2007, as already noted, Musharraf summoned Chief Justice Chaudhry to his office and effectively dismissed him for alleged “misuse of office.” Justice Chaudhry’s refusal to resign triggered country-wide anti-Musharraf protests for several months.16  Subsequent to Chaudhry’s restoration, the Supreme Court remained strident on issues such as enforced disappearances. However, it sought to avoid a direct confrontation with

Musharraf, controversially dismissing, on September 28, a constitutional challenge to Musharraf’s dual role as president and army chief on technical grounds. The Pakistani constitution prohibits the chief of the army from holding political office.17

On October 5, the Supreme Court declined to stay the presidential election scheduled for the next day, but directed the Election Commission not to officially notify the result until it gave its verdict on petitions challenging the eligibility of Musharraf to run for the office of president while remaining army chief.18 Musharraf was elected on October 6. Pakistan is technically a parliamentary democracy and the president, normally expected to function as a largely ceremonial head of state, is elected by an indirect vote for which the National Assembly, Senate, and the four provincial assemblies act as the electoral college. Prior to the election, Pakistan’s opposition parties resigned from their seats or boycotted the vote in protest, leaving only Musharraf’s supporters, who enjoyed a majority in the electoral college, to elect him. As instructed by the Supreme Court, the Election Commission refrained from officially notifying the result, temporarily preventing Musharraf from taking oath of office for a fresh five-year term.19 

From then on, the Supreme Court faced immense pressure from the government to rule in Musharraf’s favor on the question of whether he could, in fact, seek a further term of office as president while remaining army chief. Human Rights Watch learned from reliable sources that the Supreme Court repeatedly tried to impress upon the government the need to find a constitutional mechanism, such as a constitutional amendment, that would allow Musharraf to seek election while still army chief. In court proceedings, the court maintained that the doctrine of necessity was “dead” and it would rule according to the constitution.

According to Pakistani legal scholars, the constitution as it stood had at best provided Musharraf with a one-time waiver to hold both posts and further prohibited a candidate for president from running for office until two years after retirement from a military position.20 Unable to muster a parliamentary majority for a constitutional amendment and unwilling to negotiate with the opposition parties, government ministers repeatedly said that the Supreme Court should rule Musharraf’s election illegal, the military could suspend the constitution, impose martial law, and fire the judges.21

In the event, that is effectively what happened. The Supreme Court was expected to reach a decision by November 9, but on November 3, Musharraf suspended the constitution and imposed a state of emergency. Attempts by Supreme Court judges to bar the government from proclaiming emergency rule and urging government officials not to implement emergency orders were thwarted as the judges were summarily fired and detained.22 Musharraf dismissed Justice Chaudhry again and the army placed him under house arrest along with his family. Overall, almost two-thirds of 97 senior judges declined to accept emergency rule and were dismissed and placed in detention or under house arrest guarded by the paramilitary Rangers, the police, and the Inter Services Intelligence (ISI) agency of the military. The government replaced them with Musharraf loyalists and on November 22, a “puppet” Supreme Court quickly dismissed the legal challenges to Musharraf’s re-election as president.23

Musharraf’s order suspending the constitution was a diatribe against the judiciary. In a clear reference to the Steel Mills privatization case, Musharraf said, “there has been increasing interference by some members of the judiciary in government policy, adversely affecting economic growth, in particular; constant interference in executive functions, including…economic policy, price controls, downsizing of corporations.”

Musharraf went on to accuse the judges of aiding terrorism by “working at cross purposes with the executive and legislature in the fight against terrorism and extremism,” and accused the courts of thwarting intelligence agencies in their activities. He took exception to Interior Ministry and intelligence officials being held accountable and the Supreme Court’s requests for answers on enforced disappearances, asserting: “the humiliating treatment meted out to government officials by some members of the judiciary on a routine basis during court proceedings has demoralized the civil bureaucracy and senior government functionaries, to avoid being harassed, prefer inaction.”24

The deposed judges categorically deny any sympathy for “terrorists” and assert that they have never done more than insist on due process for all suspects, including terrorism suspects, and an end to the involvement of the security apparatus of the state, including the military intelligence agencies, in illegal detention, torture, and “disappearances.”




1 “Pakistan: Protesters in Judge’s Case at Risk of Violence,” Human Rights Watch news release, March 15, 2007, http://hrw.org/english/docs/2007/03/15/pakist15492.htm.

2 “Pakistan: Broadcast Media Muzzled by Musharraf’s Decree,” Human Rights Watch news release, June 6, 2007, http://hrw.org/english/docs/2007/06/06/pakist16084.htm.

3 “Judiciary turns the corner,” Dawn, July 21, 2007, http://dawn.com/2007/07/21/top1.htm (accessed December 16, 2007).

4  For example, Aitzaz Ahsan, the detained president of the Supreme Court Bar Association is a former law minister and senior Pakistan Peoples Party legislator. Ahsan has refused his party’s nomination to contest elections scheduled for January 2008 because the Bar Associations reached a decision to boycott the election.  

5 Peter Beaumont,“Musharraf widens his sphere of punishment,” The Guardian, November 18, 2007, http://www.guardian.co.uk/pakistan/Story/0,,2212932,00.html (accessed December 16, 2007).

6 Hans Kelsen, Pure Theory of Law, (Knight trans, UC Berkeley press, 1967).

7 Provisional Constitution Order No. 1 of 1999, http://www.pakistanconstitution-law.com/appendix2.asp.

8 "Judges who did not take oath under the military's Provisional Constitutional Order," Pakistan Press International, January 27, 2000.

9 Verdict of the Supreme Court of Pakistan regarding Constitution Petitions Nos. 62/99, 63/99, 53/99, 57/99, 3/2000, 66/99, and 64/99, May 12, 2000.

10 Raja Asghar, “Senate approves 17th Amendment: President’s assent likely today,” Dawn, December 31, 2003, http://dawn.com/2003/12/31/top1.htm (accessed December 16, 2007).

11 The precise duration for which Musharraf could hold both offices has been the subject of much public debate and legal dispute. On September 27, 2007, the attorney general of Pakistan told the Supreme Court that Musharraf was entitled to simultaneously hold the office of President and Army chief until November 15, 2007.

12 “Chaudhry Iftikhar named new CJ,” Dawn, May 8, 2005, http://dawn.com/2005/05/08/top4.htm (accessed December 16, 2007).

13 Nasir Iqbal, “PSM deal done in indecent haste: SC,” Dawn, August 9, 2006, http://www.dawn.com/2006/08/09/top4.htm (accessed December 16, 2007).

14 The International Convention for the Protection of All Persons from Enforced Disappearance, E/CN.4/2005/WG.22/WP.1/Rev.4 (2005), which has not yet entered into force, describes “disappearances” as “the arrest, detention, abduction or any other form of deprivation of liberty committed by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.”

15 Human Rights Watch, Off the Record — U.S. Responsibility for Enforced Disappearances in the “War on Terror,” No. 3, June 2007,

http://hrw.org/backgrounder/usa/ct0607/.

16 “Pakistan: Protesters in Judge’s Case at Risk of Violence,” Human Rights Watch news release, March 15, 2007, http://hrw.org/english/docs/2007/03/15/pakist15492.htm.

17 Clause 1 of Article 43 of the Constitution of the Islamic Republic of Pakistan states: “The President shall not hold any office of profit in the service of Pakistan or occupy any other position carrying the right to remuneration for the rendering of services.” The office of army chief is considered an “office of profit.”

18 Iftikhar A. Khan, “SC keeps Musharraf’s fate in its hands: Go-ahead for presidential election,” Dawn, October 6, 2007, http://dawn.com/2007/10/06/top1.htm (accessed December 16, 2007).

19 Raja Asghar, “Musharraf steals the show, but victory hangs on court,” Dawn, October 7, 2007, http://dawn.com/2007/10/07/top1.htm (accessed December 16, 2007).

20 Article 63 of the constitution of the Islamic Republic of Pakistan outlines the disqualifications for a member of parliament (National Assembly and Senate). Clause 63 (K) disqualifies a member of parliament from holding office if “he has been in the service of Pakistan or of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest, unless a period of two years has elapsed since he ceasedto be in such service;” Article 41 deals with the qualifications of the President. Clause 41(2) states that “a person shall not be qualified for election as President unless he is a Muslim of not less than forty-five years of age andis qualified to be elected as member of the National Assembly.”Read together, Article 63(k) and Article 41(2) make it clear that Musharraf would be disqualified from holding presidential office unless two years had elapsed since his retirement from “the service of Pakistan” in his capacity as army chief.     

21 “Pakistan: Musharraf Should Accept Ruling on Re-Election,” Human Rights Watch news release, October 24, 2007, http://hrw.org/english/docs/2007/10/24/pakist17130.htm.

22 “Seven judges reject PCO before being sent home,” Dawn, November 4, 2007, http://dawn.com/2007/11/04/top2.htm (accessed December 16, 2007).

23 Nasir Iqbal, “Way almost cleared for Musharraf’s oath-taking,” Dawn, November 23, 2007, http://dawn.com/2007/11/23/top2.htm (accessed December 16, 2007).

24 “Text of Pakistan emergency declaration,” BBC News Online, November 3, 2007, http://news.bbc.co.uk/2/hi/south_asia/7077136.stm (accessed December 16, 2007).