PAKISTAN: Legal implications of Gilani's moves

Legal implications of Gilani's moves
BASEER NAVEED
Guest Commentary, UPI Asia Online [ http://www.upiasiaonline.com ]
HONG KONG, China, April 2, 2008

The election of Yousaf Raza Gillani, who took office last week as prime minister of Pakistan, is a threat to the regime of President Pervez Musharraf, and even to his very existence. Gillani was loyal to the late Benazir Bhutto, the lifetime chairperson of the Pakistan People's Party, and is also loyal to her husband Asif Zardari and son Bilawal Bhutto Zardari, current co-chairmen of the party.

The new prime minister is considered a hawk and opposes the Musharraf government. His election sends a clear signal to the president from the coalition partners of the newly elected parliament.

The prime minister's first order was to release the deposed judges who were arrested after the imposition of a State of Emergency on Nov. 3 last year. The prime minister also requested the speaker and members of the National Assembly to issue two resolutions -- one calling for a probe into the Dec. 27 murder of Benazir Bhutto, and the second apologizing for the "judicial" murder of Zulfiqar Ali Bhutto, former prime minister and Bhutto's father, who was hanged on April 5, 1979 on the orders of the Supreme Court of Pakistan.

The first order to release the deposed judges was a clear denunciation of the actions of Musharraf against the superior judiciary. The issue of reinstating the chief justice and the other judges is a thorny one for Musharraf, as he had announced that the deposed judges would never be reinstated at any cost. He also claimed that deposed Chief Justice Iftikhar Choudhry is the most corrupt man in the country and a curse on the earth.

The National Assembly resolution requires that the deposed judges be reinstated within 30 days. After that, all the cases that have been decided or are still pending before the courts -- which were formed illegally and unconstitutionally by Musharraf through the State of Emergency and Provisional Constitution Order -- will have to be reconsidered, as the deposed judges had already declared the State of Emergency illegal and unconstitutional. Therefore the cases which were decided by the PCO judges have no legal basis.

When the judges are back in their seats, the first thing they will follow up on will be their own previous ruling against the emergency -- and by virtue of their decision the country will go back to the position of Nov. 2, 2007, in the political sense. Musharraf will be declared a "usurper" who abrogated the Constitution and will be liable to a challenge by any citizen under Article 6 of the Constitution of Pakistan -- possibly resulting in a death penalty.

The deposed judges of the Sindh High Court will restart proceedings against the perpetrators of the carnage of Karachi on May 12 last year, in which 140 persons were killed, when deposed Chief Justice Iftikhar Choudhry arrived in the city. It was while the High Court was dealing with this case that its judges were detained for almost 18 hours in their chambers and were beaten by members of the Mutehda Qaumi Movement, the coalition partner in Musharraf's government. During proceedings at the Sindh High Court, members of the MQM stormed the court building and again detained and beat the judges for several hours.

One good outcome of the prime minister's order will be the close contact between the judiciary and the lawmakers to ensure the rule of law and the supremacy of the judiciary, which will serve as a sharp sword over future governments and politicians as well. A strong civil society will emerge.

The two resolutions, regarding an enquiry into the murder of Benazir Bhutto through the United Nations and an apology from the parliament on the judicial murder of Zulfiqar Ali Bhutto, will have a far-reaching effect on the judiciary and army officers. The old judiciary, prior to March 9, 2007, was a poodle in the hands of military dictators and usurpers. If the resolution is passed in favor of Zulfiqar Ali Bhutto, it would result in something like the Nuremberg Tribunal and the army of Pakistan will have to face the consequences.

A U.N. probe into the murder of Benazir Bhutto will lead to an investigation of the role played by state intelligence agencies. A whole new chapter will be opened in the political history of Pakistan concerning the criminal role of intelligence agencies that had a hand in killing so many political leaders of the country, and even in the training of terrorists. This includes international terrorists -- Arabs, Afghans, Asians and Africans.

Such a probe could yield dangerous results, as it will expose how the military governments and rulers were involved in international terrorism, including the affairs of al-Qaida leader Osama bin Laden.

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(Baseer Naveed is a senior researcher for South Asia at the Asian Human Rights Commission in Hong Kong, China.)

http://www.upiasiaonline.com/Politics/2008/04/02/legal_implications_of_gilanis_moves/8981/