Pakistan's Activist Judges Target Musharraf

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Former President of Pakistan General Pervez Musharraf appears at the India Today Conclave conference in New Delhi.

When General Pervez Musharraf stepped down as Pakistan's president last year, he looked forward to a quiet life of golf, lucrative speaking engagements, and evenings clinking glasses and tugging on cigars with friends over a game of bridge. He certainly wasn't expecting the summons issued on Wednesday by Pakistan's Supreme Court to appear later this month and defend his November 2007 imposition of a state of emergency — when he sacked the very judges, led by the recently reinstated Chief Justice Iftikhar Chaudhry, who are now demanding answers from him.

Musharraf's resort to emergency rule was widely derided as a self-serving move by to stave off political challenges. As both army chief and president, Musharraf suspended the constitution, sacked the Supreme Court bench, arrested opposition activists and muzzled sections of the media. Many Pakistanis, including even some of Musharraf's erstwhile allies, have welcomed the court's decision to hold him accountable. But there are also fears, even among some of Musharraf's staunchest opponents, that the move represents an activist judiciary overstepping its role, playing to popular sentiment and positioning itself as an alternative authority to the unpopular civilian government.

Musharraf currently faces no charges, but the court has demanded his presence for an interview that could form the basis of a future prosecution. Leading political figures such as former prime minister Nawaz Sharif — who was overthrown by Gen. Musharraf in a 1999 coup — have long demanded that he be charged with "high treason" for "subverting the constitution." The current summons is not binding, so Musharraf has the option of dispatching a lawyer to speak on his behalf. On Friday, after consulting with former ministers, he has appointed a team of high-powered lawyers to mount a defense. The chances of Musharraf, currently residing in a new apartment in London, appearing for a verbal showdown with Judge Chaudhry are remote, despite his statement in a recent television interview that he was willing to fly back to Pakistan and face his accusers.

Ikram Sehgal, a respected defense analyst who served in the army with Musharraf, welcomed the Supreme Court's move. "Personally I like Mr. Musharraf very much," he says. "But I also believe that everyone should be held to account for their actions. And his actions were blatantly illegal when, as army chief, he imposed a state of emergency. It set a worrying precedent that any future army chief could use to send the judiciary home." Sehgal says stabilizing democracy in Pakistan will require the judiciary to revisit the constitutional tangles left over from the Musharraf years. But Sehgal raises a warning over the current case. "All of the 14 judges involved were affected by Musharraf's actions," he says. "There is an issue of neutrality."

But an aide to current President Asif Ali Zardari worries that the Supreme Court's action could trigger a fresh phase of political instability. "This is exactly what we were worried about," says the aide, speaking on condition of anonymity, in reference to Zardari's reluctance to reinstate Chaudhry and the judges sacked by Musharraf. (Zardari was forced to back down in the face of a crisis generated by nationwide protests led by lawyers.) "This judicial activism goes against our message of national reconciliation." During the 1990s, deposed civilian governments routinely found themselves dragged into court. "We don't want to a return to the politics of vengeance," says the Zardari aide.

The government has recently accused Chaudhry of encroaching on its prerogatives. Earlier this month, he struck down a new government "carbon tax" imposed in compliance with IMF demands to phase out fuel subsidies. Zardari responded with a presidential decree that brought the price of gas back up.

The reason Musharraf had dismissed Chaudhry, whom the former military ruler had appointed as Chief Justice, was the judge's enthusiasm for harrying the government with rulings that were popular with the public. Chaudhry had burnished his reputation by striking down the planned privatization of a steel mill and hearing petitions raised by the relatives of Pakistanis that human rights groups allege are being held in secret custody as terror suspects. When Chaudhry refused to yield to Musharraf's demand that he resign, the country's lawyers took to the streets in his support.

Surprisingly, perhaps, Chaudhry has some supporters among members of the old regime."In any democracy, there have to be some check and balances," says Tariq Azeem, a senator who served as Musharraf's deputy information minister and had backed the removal of Chaudhry. "Normally, it is the opposition that takes up that role. But at the moment there is no opposition. People now have to look to somebody to give them relief, and the only people left are the courts. No wonder when they take a popular step, people are happy."

Azeem also foresees personal trouble for Zardari if Chaudhry moves to revive corruption charges dropped by Musharraf as part of a presidential amnesty linked to a political deal that cleared the way for Zardari and his slain widow, former Prime Minister Benazir Bhutto to return to Pakistan. The couple always denied the charges, maintaining that the cases against them were politically motivated.

"What is bound to create problems for many people is when the Supreme Court takes up the National Reconciliation Ordinance," says Azeem, in a reference to the presidential amnesty. "The Chief Justice has already said that it's a pending matter. It's very significant. If he's going to take it up, it is naturally going to ruffle feathers, to put it lightly." Zardari is already burdened by unpopularity, public anger at power cuts and prices, and the challenges of taming Islamist militancy. If the Supreme Court continues to flex its muscles and revisits the president's old corruption cases, he could find himself in even more trouble than Musharraf seems to be in.