IFTIKHAR CHAUDHRY RETURNS

S E C R E T SECTION 01 OF 04 ISLAMABAD 000715

SIPDIS

E.O. 12958: DECL: 03/19/2019
TAGS: PREL PGOV PTER PHUM KDEM PK
SUBJECT: IFTIKHAR CHAUDHRY RETURNS

Classified By: Anne W. Patterson, for reasons 1.4 (b)(d)


1. (C) Summary. A little more than two years after former
President Musharraf initially fired him, Supreme Court Chief
Justice Iftikhar Chaudhry was restored to the bench March 22
by a reluctant President Zardari. The saga of Chaudhry's
fall and rise paradoxically demonstrated both the new-found
strength of Pakistan's civil society and the weakness of its
still politicized judiciary. Chaudhry's 2007 dismissal
became a lightening rod for growing popular opposition to
Musharraf's rule; opposition leader Nawaz Sharif successfully
exploited that anger and rode it to increase his political
power in the 2008 parliamentary elections. By flexing its
new muscles, the media played a key role in keeping the
judiciary issue alive; as the lawyers' movement became
increasingly politicized by Nawaz, the press became
increasingly critical of Zardari.


2. (C) The next question is how Chaudhry will respond to
public expectations that he again will champion populist
causes. Key pending cases include an appeal of the Supreme
Court decision to disqualify Nawaz and Shahbaz Sharif from
public office, a pending case on the constitutionality of the
National Reconciliation Ordinance that gave Zardari and
others immunity from prosecution and pending cases on former
President Musharraf's alleged crimes during his reign.
Chaudhry, who also was know for his judicial activism on the
bench, may also resume efforts to free the "disappeared," a
group of mostly Sindhi and Balochi political prisoners from
the Musharraf era but which also includes a small group of
terrorists of concern to the U.S. Within civil society,
there is an almost giddy hope that Chaudhry will take radical
action against both Zardari and Musharraf. Others question
whether Chaudhry will risk the wrath of the Army and the
political establishment yet again. In a meeting with the
Australian High Commissioner just before resuming his office,
Chaudhry avoided discussing political cases but indicated he
remained interested in resolving the fate of the
"disappeared" and was concerned about the establishment of
Qazi courts outside the normal judicial system in Swat. Post
continues to work with the GOP to ensure that any terrorists
of concern who were detained extra-judicially are brought
into the legal system for trial. End Summary.


The Chaudhry-Musharraf Saga
--------------


3. (C) When he summoned Chaudhry to fire him on March 9,
2007, former President Musharraf had every reason to believe
that the Chief Justice would go quietly. Chaudhry had sworn
an oath to Musharraf in 1999 and was anything but popular in
the legal community. He was know for abusing his court staff
and lawyers and issuing incoherent oral decisions from the
bench. His advocacy on behalf of the "disappeared"
(primarily Baloch and Sindhi nationalists detained and held
incommunicado for years) raised the hackles of
intelligence/security forces who did not want to defend their
actions in court. Chaudhry's decision to block a
privatization deal for Pakistani Steel Mills in which former
PM Aziz had an interest appeared to have been the last straw
for Musharraf. But those plans backfired when Chaudhry
simply refused to resign.


4. (C) Barrister and Pakistan People's Party (PPP) leader
Aitzaz Ahsan immediately saw an opportunity to exploit
Chaudhry's situation in favor of the PPP; he began to
organize country-wide lawyers' rallies in support for the
fired Chief Justice. The rallies tapped what had been
growing economic discontent and popular opposition to
Musharraf's eight-year rule; they were not always
peaceful--over 40 people died in May 12, 2007 clashes in
Karachi over a proposed Chaudhry appearance. For Musharraf
himself, the battle with Chaudhry became intensely personal.
PPP leader Benazir Bhutto, then in talks with Musharraf for a
negotiated return from exile, wanted to keep her distance
from Chaudhry; neither she nor her husband (now President)
Asif Zardari ever supported his restoration, and she
penalized Aitzaz for championing Chaudhry. On July 20, 2007,
the Supreme Court, seeing a direct challenge to its own
prerogatives, reinstated Chaudhry.


5. (C) Flush with victory, Chaudhry returned to the bench

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and increased his use of "suo moto" authority (the ability to
intervene judicially on any matter regardless of whether
there was a pending case) to intervene on everything from the
price of vegetables and the height of buildings to a renewed
push for the disappeared. His ruling to demand the Election
Commission abandon the need for proof of identity and expand
the voters list by 30 million within a month was a
particularly bad, although popular, decision ahead of 2008
parliamentary elections.


6. (C) Chaudhry's court did not take action to prevent
Musharraf from deporting Pakistan Muslim League-N (PML-N)
leader Nawaz Sharif in September 2007. He did accept several
cases directly affecting Musharraf. When it appeared the
Court was about to rule Musharraf ineligible for the
presidential election he won on October 6, 2007 Musharraf
stepped in November 3 to impose emergency rule, abrogate the
constitution and fire the Supreme and Provincial High Court
judges. Although the then Attorney General swore that he had
intercepts proving the Court would rule against Musharraf,
many in the legal community still doubt that Chaudhry would
really have provoked Musharraf this far.

Enter Nawaz Sharif
--------------


7. (C) Musharraf fired the Supreme Court and Provincial
High Court justices, although some agreed to return under an
oath to the Provisional Constitutional Order (PCO). Chaudhry
was kept under house arrest for five months, during which
time even his handicapped child was prevented from leaving
the house to attend school. During the parliamentary
election campaign, Nawaz Sharif seized upon the issue of
judicial independence as a popular rallying cry and rode it
to increase dramatically his power in the National and Punjab
Assemblies. Musharraf, and Zardari after him, remained
convinced that Nawaz was bankrolling the lawyers' movement
and was somehow Chaudhry's patron; we have seen no evidence
to support patronage, but Nawaz clearly backed the lawyers'
movement. Aitzaz withdrew from campaigning to focus on
leading the lawyers' movement. Newly elected PPP PM Gilani's
first official order in March 2008 was to release Chaudhry
from house arrest.


8. (C) The PPP government gradually restored most of the
deposed judges, but Zardari drew the line at reinstating
Chaudhry. Nawaz made restoration of the judiciary a key
condition for joining a national coalition government with
the PPP; when PPP President Zardari did not fulfill his
promises to restore the judges, Nawaz pulled out of the
coalition in August 2008. This divided the normally pro-PPP
lawyers, whose movement increasingly became aligned with
Nawaz and the opposition religious parties. In June 2008,
the lawyers staged a peaceful march on Islamabad. On
February 25, the Supreme Court declared Nawaz and Shahbaz
Sharif ineligible for public office, and Zardari declared
governor's rule in Punjab, thus ousting the PML-N from power.
The March 12-16 lawyers' "long march" then became a
demonstration for both restoration of judges and the Sharifs.
When demonstrations turned violent in Lahore on March 15,
the government backed down; PM Gilani announced the
government would seek a repeal of the decision to disqualify
the Sharifs and would restore all the deposed judiciary,
including Iftikhar Chaudhry as Chief Justice.

Media Triumph
--------------


9. (C) Ironically, it was the private media channels
approved by Musharraf which ensured the initial success of
the lawyers' movement and built the public pressure that
forced Musharraf to resign. By publicizing Chaudhry's 2007
nation-wide rallies and later giving Nawaz Sharif's
pro-judiciary campaign wide coverage, the media kept the
issue alive even when common Pakistanis were focused on
rising inflation and energy blackouts. During a dinner March
25 in honor of the restored judges, speaker after speaker
from the judicial community praised the media for its
critical support throughout the restoration campaign. As
Zardari continued to stonewall on restoring Chaudhry
throughout 2008, however, the press became increasingly
critical of Zardari and the PPP; at least one media group
that owns print and electronic media (Jang) became openly

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pro-Nawaz and anti-Zardari in its biased coverage.

What Now?
--------------


10. (C) The big question now is whether Chaudhry will feel
so empowered by his restoration that he will resume his
judicial activism. There are several key issues/cases the
Supreme Court will face in the coming months. Even if
Chaudhry is not on every judicial panel, he will play a role
in choosing the judges who will decide cases. In a March 20
meeting with the Australian High Commissioner, Chaudhry gave
few clues as to how he would rule on political issues, but he
indicated continued interest in the fate of the "disappeared"
and expressed concern over the recent introduction of Qazi
courts in Swat. On April 2, Chaudhry took suo moto notice of
two high-profile cases involving the death of women in honor
killings. There are several old and new cases pending that
will affect the Sharifs, Musharraf, and the National
Reconciliation Ordinance that granted Zardari and others
judicial immunity.

Eligibility of the Sharifs


11. (C) The Supreme Court March 31 agreed to issue a stay
order against its February 25 judgment disqualifying Nawaz
and Shahbaz Sharif; this reinstated the status quo ante and
temporarily allowed Shahbaz to resume his duties as Chief
Minister of Punjab. The Court began hearings March 30 on the
GOP's petition to review the February 25 decision. It is by
no means a foregone conclusion that the court will reinstate
both Sharifs. The constitution clearly says that no one
convicted of crimes of moral turpitude are eligible to serve
in parliament. The case against Nawaz, who was convicted of
hijacking and corruption, is stronger than the case against
Shahbaz, who was convicted of absconding without paying a
debt. If the Court rules against the Sharifs, there will be
pressure for the parliament to amend the constitution in some
way to accommodate the most popular leaders in the country.

PCO Judges


12. (C) Of primarily domestic interest, the Court is now
composed of 26 justices, including those who agreed to return
to the court after Musharraf fired the justices (these are
referred to as Provisional Constitutional Order (PCO) judges)
and those who refused. Several petitions have been filed to
remove the PCO judges from the Court, and there is a great
deal of speculation within the legal community on how these
two groups of justices can work together on pending cases.
Chaudhry may decide to move against the PCO judges.

Musharraf


13. (C) Part of the deal under which Musharraf resigned in
August 2008 included a promise (as yet unfulfilled) by
Zardari that Musharraf would be granted immunity from
prosecution for any alleged crimes committed during his
presidency. Since Chaudhry's reinstatement, Nawaz Sharif and
several opposition parties have suggested that Musharraf
should be tried for treason, and that the constitution's
death penalty should be invoked. Others have submitted
petitions to the Supreme Court urging that Musharraf be
placed on the Exit Control List.


14. (C) Pakistan Muslim League (PML) President Chaudhry
Shujaat Hussain told DCM and Polcouns March 29 that Musharraf
was "panicked" over these reports. Musharraf began a 15 day
tour of China March 30, and his PML party leaders have
suggested now is the time for a two-three month extended stay
abroad. On March 31, the Supreme Court dismissed several
petitions against Musharraf on technical grounds, but this
does not mean that Chaudhry will not be seeking revenge
against Musharraf. If he does move against the former
President, we expect the Army to step in and find a
reasonable exit (i.e., no public trial) for Musharraf.

National Reconciliation Ordinance


15. (C) Many Pakistanis believe that Zardari opposed the
return of Chaudhry because he was afraid the Chief Justice
would rule unconstitutional the 2007 National Reconciliation
Ordinance (NRO) that granted immunity to politicians charged

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but not convicted of crimes between 1986 and 1999. Both
Benazir Bhutto and Zardari benefited from the NRO, which was
negotiated as part of the deal preparing for Benazir's return
from exile in 2007. There is still a petition pending
challenging the constitutionality of the NRO, which remains
unpopular with the general public. We do not believe
Chaudhry would challenge Zardari directly on the NRO, at
least not yet. If Zardari's star falls, however, a negative
ruling on the NRO could open the door for parliamentary
impeachment on corruption grounds.

The Disappeared


16. (S) Many Pakistanis erroneously believe (spurred by
suggestions by Zardari and others) that the U.S. opposed the
restoration of Chaudhry because we were concerned he would
free the "disappeared," who are presumed to all be terrorists
picked up at the behest of the USG. We were concerned when
the courts under Chaudhry began releasing some of the
"disappeared" who were known terrorists, and we began in 2007
to work with the GOP to bring these detainees into the legal
system. Currently, there are about 40 persons of concern to
the U.S. on terrorism grounds who are in GOP custody, and we
continue to work with the PPP government to find a way to
bring them to trial.


17. (C) Comment: Chaudhry remains a potent symbol for
Pakistanis who dream of an independent judiciary to replace
the reality of often corrupt and politicized courts. Civil
society is rightly celebrating his return as a victory for
lawyers and the media. Whether Chaudhry resumes a level of
judicial activism that again threatens political stability,
however, will affect his legacy as a champion for judicial
independence.


PATTERSON