Anil Kalhan

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Posted at Dorf on Law

From Rawalpindi comes shocking news that Benazir Bhutto has been assassinated. Many details remain uncertain, but the horrific basics are clear enough:

Benazir Bhutto was killed at a PPP rally in Rawalpindi [along with at least 30 others]. . . . The election rally, with “foolproof security”, was held at Liaqut Bagh – a site which had already seen the assassination of another Prime Minister of Pakistan, Liaqut Ali Khan.

There were earlier reports of security threats on her rally – similar reports were issued before the suicide attack on her in October. [link]

Sadly, the South Asian subcontinent has been down this road before. More than once, in fact — but one moment stands out as eerily reminiscent:

[An] heir to a miraculous name, disappeared in a fiendish conjurer’s trick: amid the theatrics of an electioneering stop, and in the puff of smoke from a bomb… Apart from the egregious act of violence that killed [the former Prime Minister], the bloody shirt of extremism and communal vengeance has been threatening to supersede all norms of democracy in the nation. [link]

So wrote Time in 1991, when another former prime minister (Rajiv Gandhi, in India) was killed on the campaign trail by a suicide bomber. During the late 1980s, Gandhi and Bhutto together were regarded by many in India and Pakistan with a fair bit of hope. Youthful and energetic, the two “got along famously” in their first summit meeting and were seen by many as ushering in generational change, a new set of leaders capable, together, of moving the subcontinent in different directions. The days of such extreme optimism passed long ago. But tragically, both of them now are linked with each other in death as well.

When Rajiv Gandhi was assassinated, some observers fretted over the “uncertainty” and the “leadership vacuum” that his death may have created within the Congress Party, much as they fret today over the future of Bhutto’s Pakistan People’s Party and democratic leadership in Pakistan more generally. The circumstances are by no means identical, but certainly one need not lose all hope that democratic leaders can and will emerge in Pakistan in the aftermath of this tragedy, that the prospects for democracy in Pakistan did not rest on Benazir Bhutto’s shoulders alone. Indeed, the lawyers’ movement and the vigorous resistance of Pakistan’s civil society to Musharraf’s Emergency demonstrate that many such leaders already are present — that the mainstream, democratic instincts and aspirations in Pakistan may well be durable enough to survive the assassination of one charismatic and pioneering leader. If, that is, those instincts and aspirations are given space to flourish, rather than simply to grasp for dear life. One can only hope that going forward the United States will belatedly recognize this fact, nurturing and supporting the democratic processes and civil society institutions that have been producing those leaders, rather than simply propping up particular personalities, out of perceived expediency, even as they tear the institutions of democracy and civil society asunder.

For now, I leave you with the remembrances of Benazir Bhutto offered by Adil Najam:

[A]ll of these [questions] are paled by thoughts about Benazir as a person. The woman. The wife. The mother. The human being. What about her?

I have not always agreed with her politically but there was always a respect for her political courage. I had met her many times, first as a journalist covering her when she had just returned to Pakistan in the Zia era and before she became Prime Minister. Later a number of times in her two stints as Prime Minister and then a few times during her exile. In that last period she toll to referring to me as “Professor sahib” and some of our exchanges were more candid (at least on my part) than they had been earlier.

At a human level this is a tragedy like no other. Only a few days ago I was mentioning to someone that the single most tragic person in all of Pakistan – maybe all the world – is Nusrat Bhutto. Benazir’s mother. Think about it. Her husband, killed. One son poisoned. Another son assasinated. One daughter dead possibly of drug overdose. Another daughter rises to be Prime Minister twice, but jailed, exiled, and finally gunned down.

and by Manan Ahmed:

In the nation whose history is dotted by military coups, assassinations and hangings of public figures, this is surely the bloodiest stain. She titled her autobiography, the Daughter of Destiny – but surely she deserved a fate other than the destiny of her father and Liaqut Ali Khan. It is truly a tragedy and a revelation of the chaos gripping the nation.

And finally, with the hope that the political violence emerging in response to Bhutto’s assassination — all too common in the subcontinent — will soon subside.

Posted at Dorf on Law

Yesterday, former General Pervez Musharraf purported to “lift” the Emergency he declared on November 3rd, claiming that he has now “revived” the Pakistan Constitution of 1973. Members of Pakistan’s civil society are not particularly impressed. And they shouldn’t be. Musharraf’s claim to have “lifted” the Emergency makes sense only if we understand the word “lifted” to mean “institutionalized and made permanent via a one-man constitutional convention.” Most of the actions he has taken during the last six weeks remain in place, and even his orders purporting to “lift” the Emergency simultaneously implement a raft of permanent constitutional amendments designed to consolidate his grip on power. Let’s take stock of where things now stand compared to where they stood on November 2nd:

1. Musharraf has laundered the judiciary by dismissing all Supreme Court and High Court judges who refused to take a new oath of loyalty to his provisional constitutional regime and packing the courts with pliant judges who have explicitly pledged their loyalty to him. Through a unilateral amendment to the Pakistan Constitution itself, he has now made the dismissal of those judges permanent. In the process, he has prevented the Supreme Court of Pakistan from adjudicating his eligibility to hold office and undermined its ability to proceed with a credible investigation into the hundreds of disappearances that have occurred since 2001 in connection with the “war on terror” (as discussed in the documentary “Missing in Pakistan,” which is linked above).
2. He has detained thousands of regime opponents, apparently subjecting some of them to torture. While most of these individuals have now been released, several leading lawyers remain under house arrest, and the message to would-be regime opponents has been crystal clear.
3. He has laundered the media, forcing independent television networks off the air and permitting their return only on condition that they (1) muzzle themselves by pulling programming critical of his regime and (2) abide by a “code of conduct” that permits the government to suspend their operations more or less at will.
4. He has amended the Army Act, with retrospective effect from January 2003, to permit civilians to be tried in military tribunals for offenses ranging “from murder to libel,” including “expressions or acts that are ‘prejudicial’ or offensive towards the government.” [link]
5. He has amended the Legal Practitioners and Bar Councils Act in a manner that permits the executive to interfere with the operations of independent bar associations and makes it easier to target lawyers critical of the government with allegations of misconduct. [link]
6. He has unilaterally and permanently amended the Pakistan Constitution to restructure the judiciary, changing the eligibility requirements for individuals to become High Court judges and creating a new Islamabad High Court in order to facilitate easy transfer of cases from other High Courts to a more favorable jurisdiction “composed of judges that the government has handpicked.” [link]
7. He has unilaterally and permanently amended the Constitution to validate his eligibility to hold office as President.
8. And last but not least, he has unilaterally and permanently amended the Constitution to indemnify his self-consciously extraconstitutional actions. Under Article 6 of the Pakistan Constitution, those actions constitute “high treason” insofar as they entail an effort to abrogate or subvert the Constitution “by use of force or show of force or by other unconstitutional means.” However, under Musharraf’s new amendment, the Constitution now provides that all laws and actions during the past six weeks are now “affirmed, adopted and declared to have been validly made … and notwithstanding anything contained in the Constitution shall not be called in question in any court or forum on any ground whatsoever.” Even after Musharraf’s first coup, he was not so brazen as to unilaterally indemnify himself, instead obtaining that indemnification (albeit with some difficulty, even though it was packed with his supporters) from Parliament, as General Zia ul-Haq had before him. This time, however, Musharraf is insisting that Parliament’s prior decisions to indemnify these acts of treason were merely “ceremonial,” arguing somewhat oddly through his law minister that “not a single provision in the Constitution required [Parliamentary] validation of measures done through extra-constitutional steps.” [link] (I suppose that technically might be true, but of course, that also just might be because under the Constitution, “extra-constitutional steps” are, well, unconstitutional, full stop — indeed, it would be surprising if the Constitution contemplated the “validation” of such steps by anyone.)

The effects of these changes will long outlast the “lifting” of the Emergency. And so, the laundering of Pakistan’s institutions is nearly complete; all that appears to remain is the spin cycle, in which Musharraf and his allies publicly congratulate themselves for how much they have done to promote democracy in Pakistan. The Bush administration and “America’s Sweetheart” Benazir Bhutto have duly cooperated with Musharraf’s spinning, with both welcoming his actions this weekend as a positive step with little or no accompanying criticism. Of course, neither response is all that surprising at this point. Not only has Bush himself said that Musharraf has not “crossed any lines,” but some press reports have even suggested that Western governments have quietly endorsed Musharraf’s purge of the judiciary because they, too, have been concerned about Pakistani judges acting too independently. For her part, Benazir has scrupulously avoided calling for the restoration of Pakistan’s purged judges, stating — to considerable disbelief — that she believes in the independence of the judiciary but that the “personalities” of those judges do not matter. And flip-flopping like Mitt Romney, Benazir now even has suggested that she might be willing and able to work with the General after all.

As for the upcoming elections, Musharraf insists that they will be free and fair. Early indications — including the use of the police to hang up posters for Musharraf’s party, as seen in the above photo — are not promising. Adil Najam seems right on the money in describing the “lifting” of the Emergency as “three steps back, half a step forward.”