Sacking the Vote along with Judges

The Bush administration is pinning its hopes for the future of Pakistan's democracy and stability on holding free and fair elections Monday. But by ignoring the wholesale firing by President Pervez Musharraf of most of Pakistan's highest judges -- many of whom are under arrest or sitting at home -- the administration is complicit in ensuring that these elections will be neither free nor fair.

Pakistan is vital to efforts to prevent al Qaeda from planning international terrorist attacks and to keep the Taliban from undermining the fragile government in Afghanistan. But if Monday's elections are so tainted that they produce a government without public confidence or support, the end result will be instability and disunity.

Not once in the three months since Musharraf got rid of the judges who refused to accept his illegal and unconstitutional emergency regime has the Bush administration specifically asked for their reinstatement. While presiding as chief of the army, Musharraf removed two-thirds of Pakistan's Supreme Court, including Chief Justice Iftikhar Mohammad Chaudhry. He also sacked two-thirds of the provincial supreme court judges.

Twelve weeks later, all those provincial judges remain barred from the bench by Musharraf; some have been detained for speaking publicly. Most of the ousted Supreme Court justices also remain under house arrest.

Recently, the president of the Supreme Court Bar Association, Aitzaz Ahsan, as well as two of Pakistan's most prominent lawyers -- retired Justice Tariq Mahmood and former Pakistan Bar Council Vice Chairman Ali Ahmed Kurd -- were rearrested after serving 90 days under house arrest because they oppose the destruction of an independent judiciary.

Undermining the separation of powers and checks and balances within a democracy is bad enough, but given the crucial role of judges in Pakistan's electoral process, Musharraf's actions also have made it virtually impossible to hold credible elections.

When I met with the Electoral Commission of Pakistan secretariat in Islamabad, just days before emergency rule was declared, they assured me that any election fraud charges or allegations of rigging would be heard by special election complaint tribunals. But who will sit on those tribunals?

Most of the provincial high court judges who sat there before Musharraf's emergency rule were fired. Those who remain gave up their independence when they swore allegiance to a blatantly unconstitutional martial-law regime.

The electoral commission is composed of a retired supreme court justice and four sitting high court judges, one from each province. By forcing more than 40 high court judges to either swear allegiance to his emergency rule or be removed, Musharraf has ensured that the judges on the ECP are his hand-picked choices.

Pakistan's electoral structure is compromised from top to bottom, including at individual polling booths. In each locality, district judges serve as the elections return officers, overseeing the results from the polling stations. These judges are under the jurisdiction of the provincial high courts -- the very courts that Musharraf gutted. Now the district judges overseeing polling stations are reporting only to biased high court judges.

Bush and other officials have called for fair and free elections on Monday and have expressed the desire that an independent judiciary will be pursued after a new parliament is sworn in. But that parliament will lack credibility unless its election is overseen by a credible judiciary. So too will any post-election complaints from the political parties by the special election tribunals, since they will also be made up only of Musharraf's picks.

If the Bush administration wants free and fair elections to usher in real democracy and stability in Pakistan, the time to demand an independent judiciary is not after the elections Monday. The time is now.