With Deportation of Nawaz Sharif, the End Game Begins By Brigadier ® Usman Khalid

The holding of the office of COAS by General Musharraf is illegal after his tenure of three years ended in October 2001; secondly after he attained the age of superannuation on August 10, 2003; and thirdly after incurring disqualification under Article 63 (1) (d) of the Constitution on December 31, 2004.

In a column titled "˜Beginning of the End' in "˜The Nation' Lahore of 19 March 2007) I wrote that the End of Musharraf began with his decision to file a reference against the Chief Justice. The swagger sticks of the generals could not obtain the resignation of the Chief Justice of Pakistan; the aura of the Presidency melted away. On 12 May he compounded his error by "˜demonstration of force' in Karachi and Islamabad simultaneously. To prevent the Chief Justice of Pakistan from addressing the High Court Bar Association in Karachi, the CJ was detained at the air port while the police stood aside and armed thugs of the MQM fired directly into crowds. They killed forty citizens of Karachi while the General himself was addressing crowds in Islamabad bussed at government expense hundreds of miles by Nazims (Mayors) from the Punjab and Frontier Provinces. He told the crowd that the "˜show of force' by the MQM in Karachi and "˜show of support' by his Kings Party in Islamabad was clear proof that the people were with him and not the Chief Justice. Besides that being untrue, he missed the point that the case of the Chief Justice was going to be decided by Supreme Court and not by popular vote.

On September 10, 2007 (Pakistan's 9/10) President Musharraf carried out another demonstration of force, once again to intimidate the judiciary. He despatched the former Prime Minister of Pakistan "“ Mian Nawaz Sharif "“ back into exile in Saudi Arabia despite the Supreme Court having ordered the federal and provincial governments not to obstruct his return to the country. This order was passed upholding a fundamental right under Article 15 of the Constitution. General Musharraf has obviously not understood that one do a lot of things with bayonets except sitting on them. The demonstration of force on 12 May did not intimidate the judges. If anything, their resolve to do the right thing must have been strengthened. The Supreme Court ruled that the Constitution did not give the President an authority to remove the Chief Justice. Mr Iftikhar Mohammed Chaudhry was reinstated as the Chief Justice by the orders of the Supreme Court. Independence of the Judiciary was thus asserted and institutionalised by the high judiciary by its own action.

While Mian Nawaz Sharif was being put on a plane to Jeddah on 10 September, the MQM filled the courtyard of the High Court in Karachi with workers and carried out a gherao of the building to intimidate the bench engaged in suo moto hearing of 12 May riots in Karachi. A lawyer assisting the court was murdered on the premises and several other lawyers were beaten up by MQM thugs. Like 12 May, 10 September was an orchestrated scheme of the Musharraf administration to intimidate the judiciary. It succeeded on the day. The hearing of 12 May Riots was postponed and the Supreme Court did not take suo moto notice of the defiance of the court order by the government, which was being flouted on TV screens of Pakistan. It was a clear case of "˜contempt of court' but it was perhaps not the right time or occasion to take suo moto notice. In any case, a petition has been filed against the "˜forced exile' and redress sought in ordering the government to facilitate the return of Mian Nawaz Sharif from Jeddah.

It has become apparent that frequent visitation of military rule in Pakistan is not because the Generals are ambitious and avaricious, it is the acquiescent judiciary willing to ignore, even endorse, the excesses of the Executive Branch of Government, which makes that possible. When one judge "“ Justice Iftikhar Chaudhry "“ refused to be intimidated into resigning, the glare of accolade reformed the entire judicial establishment almost overnight. The political establishment has also been provided the same opportunity. The MNAs and MPAs are being asked to elect Musharraf as President in uniform. All of them "“ whatever their party - can also make public declaration that they will NOT vote for Mushharaf. The political scene would be transformed overnight - once again by public accolade rather than by threat of being nabbed by NAB. In the USA, an electoral college elects the President. But since all those who seek election to the Electoral College, declare beforehand which candidate they support, the Presidential election in the USA is effectively a "˜direct' election. There is no reason why the members of the Electoral College for the Presidential election in Pakistan cannot make the election equally transparent by declaring their intent beforehand.

Judicial activism has since led to the release of a long incarcerated PML (N) Leader "“ Javed Hashmi "“ and dozens of "˜disappeared' who had been held incommunicado without charge or trial for years. The most important decision of the Supreme Court, thus far, has been to rule that Mian Nawaz Sharif could return from exile abroad and that his return not be impeded. There were signs that Musharraf would defy the Supreme Court. The first salvo was fired by the Minister of Parliamentary Affairs "“ Dr. Sher Afgan "“ who said on TV that the judgement would be defied. He was indicted for "˜contempt of court' but before the case against him could be heard, the "˜contempt' precipitated. The high judiciary in Pakistan is faced with intimidation as well defiance initiated by the same person "“ General Musharraf. If that person is dealt with first, the structure of intimidation and defiance will melt away. At this time, the Supreme Court has several important petitions before it. The most important are those filed by Qazi Hussain Ahmed and Imran Khan. They have pleaded that the holding of the office of COAS by General Musharraf is illegal after his tenure of three years ended in October 2001, secondly after he attained the age of superannuation on August 10, 2003, and thirdly after incurring disqualification under Article 63 (1) (d) of the Constitution on December 31, 2004. The redress is that General Musharraf should be retired forthwith.

The case of eligibility of General Musharraf to contest election for President is also going to come before the Supreme Court unless he is held to be disqualified by the Election Commission first. The misconduct of General Musharraf has provided an opportunity to every institution of the state to reform itself rather than await a political messiah who will never come. He also provides an opportunity to past and present collaborators of foreign powers to hang themselves as Benazir is doing. I am more optimistic than ever before in the 73 years of my life. I can see that the country is being ruled by three armed mafias. The MQM in the South, the Takfiri (those who consider the non-devout as worse than Kafir) mis-named as Taliban in the North, and the military. (The military operates like a mafia when it defies the state and obeys even unlawful orders of its commanders). General Musharraf depends on the Military and the MQM for his political survival.

Only when he goes, the military can be brought back under the state's law and control and the other two mafias can be tamed. It would have been better if the rebellion by the Electoral College had materialised before the judgement of the Supreme Court on petitions by Qazi Hussain Ahmed and Imran Khan. But I am sure the Supreme Court can deal with a littler extra burden and a little more pressure.

The writer is Director London Institute of South Asia