Sun Nov 11, 2007 by Anil Kalhan
“Positive Steps”? (Dorf on Law)
(Posted at Dorf on Law)
George Bush continues to astound when it comes to Pakistan, showing an inexhaustible supply of either patience or lack of concern:
“I haven’t spoken to President Musharraf since I did earlier this week, but he knows my position, and he knows the position of the U.S. government,” Bush said. “I do want to remind you that he has declared that he’ll take off his uniform, and he has declared there will be elections, which are positive steps… We also believe that suspension of the emergency decree will make it easier for the democracy to flourish. And so our message is consistent and clear.” [link]
The Bush approach to Pakistan is fast becoming the mother of all faith-based initiatives, a far cry from “trust but verify“:
Bush was asked if he is at all concerned that Musharraf may not live up to the promises he has made….
“I take a person for his word until otherwise,” Bush replied. “I think that’s what you have to do. When somebody says this is what they’re going to do, then you give them a chance to do it.” [link]
It’s difficult to fathom what would have to happen for Bush to decide that “otherwise” has transpired. We’ve already seen that Musharraf’s primary aim in declaring martial law is not fighting the “war on terror,” but eviscerating the independence of the judiciary and targeting regime opponents, particularly in the legal community. We’ve also seen that Musharraf is amply willing to subject a number of those opponents — including Muneer A Malik, Aitzaz Ahsan, Tariq Mahmood and Ali Ahmed Kurd, all distinguished lawyers at the highest levels of the Pakistani bar — to incommunicado detention without charge, where they are likely to be tortured by Pakistan’s military intelligence. Musharraf has apparently moved some of those detained leaders to undisclosed, remote locations — making public scrutiny of their detention and contact with lawyers and family members even more difficult. For similar reasons, he also has started to transfer some of the detained Supreme Court justices out of Islamabad to more remote areas.
Now, how has Musharraf responded to Bush’s latest vote of confidence?
Pakistan’s military ruler has amended a law to give sweeping powers to army courts to try civilians on charges such as treason and inciting public unrest … [The] decision to amend the Pakistan Army Act … would allow military courts to try people accused of treason, sedition, or “giving statements conducive to public mischief.” [link]
More details from Pakistani human rights lawyer Asma Jahangir:
The promulgation of the amendments to the Army Act, are alarming. These amendments give wide powers to military courts. Civilians can be tried for a number of offences including for expressing views that citizens of Pakistan comprise of more than one nationality by military courts. Antiquated laws that had lost their teeth through judicial reviews are now being resurrected and made punishable to be tried by the military. Trials will not be open to public hearings; lawyers will only be allowed to represent the accused in the capacity of a friend. Investigation will be carried out by military personal and ordinary rules of evidence will not apply.
* * *
The amendments made under the Army Act are blatantly violating all norms of human rights and the Constitution of Pakistan. In order, to settle scores with lawyers, human rights activists and defiant journalists the law is given effect from January 2003. This also allows the government to legitimize the illegal acts of disappearances carried out by the intelligence agencies with impunity.
* * *
The new amendments fully support the assertion that General Musharaf has not declared emergency, but imposed martial law and that it has pointedly targeted a vocal civil society. Zia’s draconian laws have also been activated and offences under them will be tried under the Army Act. In 1984 Zia made amendments in the Penal Code making expressions of ‘disaffection’ against the government and those ‘prejudicial’ to Pakistan punishable. Those accused of expressions or acts that are ‘prejudicial’ or offensive towards the government will now be tried by the military.
The Attorney General justified these amendments on the grounds that these were essential for combating terrorism and that similar laws also exist in the United Kingdom and the USA. First, two wrongs will never make right. Secondly, the UK and the USA have an independent judiciary that has also struck down provisions of the Patriot Act. The military courts in the UK or the USA do not try their own citizens. Moreover, journalists, lawyers and activists in the UK or the US have not been charged for terrorism or treason. In Pakistan, police has filed reports accusing several lawyers and activists of terrorism. There are at least three FIRs against me under the Terrorist Act. Judges of superior courts are not under house arrest in either the UK or the US.
Granting military courts jurisdiction to try offences from murder to libel is an expression of the government’s own lack of confidence in its selected PCO judges. The onslaught on the courts was not because they were obstructing trial of terrorists but because they dared to give relief in some cases. A dictator seeks absolute obedience and fears his own shadow too. As such no amount of appeasement or repression will out their minds at rest. There is little doubt that the Musharaf regime is no mood to change course. They want absolute power. They will tolerate no dissent and will continue to use the terrorist card to keep the international community at bay. How long will the bluff and a state of self-denial work?