Anil Kalhan

Last week, London’s new Mayor Alexander Boris de Pfeffel Johnson made a pitch in support of the upcoming London Mela, a major festival celebrating British Asian arts and culture that some have called the "Asian Glastonbury." Speaking at the press launch for the festival, which will be held in early August, Johnson urged Londoners to "get on down" to the festival and "strut [their] funky stuff." He acknowledged that he had merely a "passing" acquaintance with bhangra and reminisced about his effort to learn some moves at a cousin’s wedding in Delhi:

I was told you had to do "lightbulb lightbulb, motorbike motorbike." I
practiced a great deal, and I had my kurta pajama, and my chappals, and my everything else, and I thought I looked absolutely tremendous. And everybody else turned up in a suit. [link]

Continue reading at SAJAforum…

(Cross-posted from SAJAforum)

This morning, Aitzaz Ahsan, the President of the Pakistan Supreme Court Bar Association and the leader of Pakistan’s “lawyers’ movement,” spoke to a large audience at the New York City Bar Association about the lawyers’ movement, the importance of an independent judiciary, and the role of U.S. policy in Pakistan’s judicial crisis. During the past year, the New York City Bar has played an active role in support of Pakistan’s lawyers and judges — organizing a solidarity rally with other area bar associations after Gen. Pervez Musharraf imposed “emergency” rule in November, issuing a statement strongly urging Musharraf to restore the rule of law, and awarding an honorary membership, one of the organization’s highest honors, to Pakistan Chief Justice Iftikhar Muhammad Chaudhry.

In his remarks, Ahsan thanked U.S. lawyers and bar associations for their “unstinting support for constitutionalism, rule of law, and reinstatement of an independent judiciary in Pakistan.” He said that last November’s rally — which drew hundreds of New York lawyers to the steps of the courthouse in lower Manhattan — “was an unprecedented collective action, and it was noticed throughout Pakistan.” Ahsan expressed his view that “what has endeared the people of America to the people of Pakistan, despite the adversarial policies of the American administration, has been the support of the bar associations.”

Following his address at the New York City Bar, Ahsan briefly talked to SAJAforum about the lawyers’ movement, the prospects for reinstatement of the judges ousted by Musharraf, and the role of Pakistan’s media:

Continue reading at SAJAforum…

(Posted at Dorf on Law)

It’s been quite a saga, one that has captured the attention of an entire nation and indeed many people around the world. An establishment figure who, only a year and a half ago, seemed politically invincible now faces what can only be described as a stunning defeat. The path from there to here has been a remarkable one. The movement that helped bring about this moment has drawn its energy from groups who have surprised many observers with the breadth and depth of their political engagement. As this movement steadily grew over the course of 2007, the political climate accordingly intensified, culminating this January and February in an extraordinary campaign and a stunning set of election results.

But to the unending frustration of many, here we are in June, and the durability of any meaningful resolution remains somewhat unclear. Back in February, it seemed to many observers that at least the first round of that anti-establishment political campaign had reached a swift conclusion. But then February dragged into March and April, and a series of controversies and arguable missteps followed. Leading members of the Bush administration and their allies started to complicate matters by inserting themselves into the fray. Now that summer has arrived, a common question continues to be on the minds of many: will this drama really end any time soon?

The past week has finally raised hope that some sort of resolution is at hand. However, it is still not at all clear that the road ahead will be a smooth one — to the contrary, many signs point to a rather bumpy political ride. For one thing, political figures who owe electoral success to a grassroots movement will now be held accountable to it: the movement that fueled electoral victory will not look kindly upon any sort of compromise or power-sharing arrangement if such a deal jettisons its principles and values. And of course there remains the formidable challenge of dealing with a powerful establishment figure who retains intense support in politically influential quarters. With some erstwhile allies abandoning ship — apparently to the point of insisting upon an earlier departure from the political scene than anticipated — there has been much talk in recent days of the possibility of a “soft landing” or “dignified exit.” The end of this particular political chapter may finally be drawing near.

**

Whatever the fate of Pervez Musharraf himself, there remains the complicated question of how Pakistan’s governing coalition might roll back the legal and institutional changes that Musharraf imposed by decree during last fall’s Emergency. For the past few months, the leadership of the Pakistan People’s Party has been equivocal about its interest in rolling back Musharraf’s Emergency — indeed, to date the new government even continues to retain Musharraf’s Attorney General in that post. Last week, however, it was reported that the PPP had prepared a lengthy draft package of legal changes which includes, among other things, reinstatement of the judges ousted by Musharraf during the Emergency. Based on that draft text, which is incomplete and may still change, a few things are worth noting.

First, the draft proposal is an elaborate constitutional package, not an executive order or even an informal announcement of the kind made by Prime Minister Yousef Gilani back in March when he ordered the immediate release of the judges detained by Musharraf. The use of a lengthy package of constitutional amendments as a modality of rollback seems to implicitly concede that the legal regime imposed by Musharraf during the Emergency — what I have referred to as an “extraconstitution” — was in some manner lawful or legitimate. After all, as Babar Sattar has written, “[a]n illegal order is simply void and doesn’t need to be reversed through law making.”

While a cute textual argument can be made that the language of the draft constitutional package sidesteps any direct acknowledgment of the legitimacy of Musharraf’s extraconstitution, the argument seems a bit too cute by half, especially since in substance the package appears to adopt a number of the very changes made by Musharraf during the Emergency. The package would also at least partially indemnify against treason both Musharraf himself and the judges who affirmed their allegiance to him in violation of the Supreme Court’s order enjoining Musharraf’s Emergency — a move that would necessarily involve some measure of acquiescence to Musharraf’s extraconstitution. (Although the proposed amendments explicitly provide that Supreme Court or High Court judges who validate any extraconstitutional abrogation of the Constitution would cease to be judges and may be found guilty of high treason under Article 6 of the Constitution, the amendments appear not to extend those consequences to the judges who validated Musharraf’s extraconstitutional Emergency in November.)

Second, the draft package would limit the power of the presidency. The key amendments include a provision repealing Article 58(2)(b), a provision added during the 1980s by General Zia-ul-Haq which confers power upon the president to dissolve Parliament, and a number of provisions transferring specific powers from the president to the prime minister. These provisions would restore the constitutional balance of authority in favor of Parliament over the presidency, as originally contemplated by the Pakistan Constitution of 1973, and will be welcomed in many quarters. Under the PPP’s coalition partner Nawaz Sharif, Parliament actually repealed Article 58(2)(b) during the late 1990s, with support for the repeal coming from across the partisan spectrum. Musharraf, however, restored the provision following his first coup d’etat in 1999. The availability during the 1990s of a means by which the executive could dissolve Parliament facilitated a state of affairs that Husain Haqqani has referred to as “military rule by other means.” Especially over the medium and long-term, it certainly would remain to be seen whether the Army would go along with the elimination of these provisions.

Finally, while the draft package would reinstate the judges ousted by Musharraf, it apparently also includes a number of provisions designed to limit judicial independence and to place the judiciary under tighter parliamentary control, most notably by limiting existing judges’ terms of office and making changes to the judicial appointment process. For months, both Musharraf and the Bush administration have been actively maneuvering to prevent Chief Justice Iftikhar Muhammad Chaudhry’s reinstatement, and earlier proposals floated by the PPP leadership reportedly would have excluded Chaudhry from the restoration package altogether. When those proposals met with resistance from the lawyers’ movement, civil society, and Nawaz Sharif, the PPP leadership now instead seeks to limit the chief justice’s term of office.

A key issue lurking in the background of the dispute over the judges is the fate of the National Reconciliation Ordinance brokered by the Bush administration between Musharraf and Benazir Bhutto, which purports to indemnify Benazir and her widower, PPP Chairman Asif Zardari, and to dismiss all of the corruption cases pending against them. The legality of the NRO has been challenged, and an independent judiciary with Chaudhry at the helm may or may not validate it. So far, Zardari has largely seemed disinclined to take his chances about that.

So far, both the lawyers’ movement and Sharif have been relatively unimpressed by the constitutional package, regarding many of its features as too much of an accommodation with Musharraf, his extraconstitution, and his handpicked judges. Sharif has pulled the ministers from his Pakistan Muslim League (N) party out of the cabinet, although he has not pulled the PML-N out of the coalition altogether. The lawyers’ movement has scheduled a “Long March” to Islamabad for the coming week — and remarkably, over a hundred rank and file PPP members of Parliament have indicated their support for the Long March.

Today, Musharraf said that all other things being equal he would prefer not to be a “useless vegetable,” and that if the Parliament’s constitutional package leaves him without “any role to play, then it is better to play golf.” (His spokesperson, however, was quick to note yesterday that Musharraf “has not packed … his golf bag” just yet.) Back in January, after Benazir Bhutto was assassinated, Zardari said that he would groom their 19-year-old son, Bilawal Bhutto Zardari, to take the helm as PPP chairperson, and that when Bilawal is “responsible enough,” then he, too, could leave politics to “go and play golf.” Lame duck President George W. Bush has apparently stopped playing golf, but has by no means stopped expressing strong support for his friend Musharraf. (Recall that Bush famously asserted that Musharraf had not “crossed any lines” during the Emergency.) Maybe Musharraf and Zardari will soon find themselves accusing each other of cheating on the golf course, rather than in politics — with Bush serving as caddy, reviewing the scorecard, and trying to broker a deal between them.

(Posted at Dorf on Law)

This week, the people of Pakistan have raised the stakes in their nation’s constitutional politics. However, the Bush administration, John McCain, and others seem not to quite understand the significance and meaning of this week’s election results:

The US and Britain are pressing Pervez Musharraf’s victorious opponents to drop their demands that he resign as president and that the country’s independent judiciary be restored before forming a government.

In a strategy some Western diplomats admit could badly backfire, the Bush administration has made clear it wishes to continue to support Mr Musharraf even after Monday’s election in which the Pakistani public delivered a resounding rejection of his policies….

Yesterday morning, a US diplomat based in Lahore spent two hours with Aitzaz Ahsan, leader of the lawyers movement, laying out the US position. [link]

**

US Senator John McCain, the Republican Party presidential hopeful, has rejected calls for the resignation of President Pervez Musharraf following Monday’s elections, saying he is a “legitimately elected” Pakistani leader. [link]

Perhaps none of this should be all that surprising, given that both Bush and McCain have been wildly wrong about Pakistan at just about every turn. Still, after an election in which the Pakistani people are experiencing a profound “moment of hope,” having turned out in apparently record numbers to give Musharraf and his backers an anti-incumbent thumping unlike anything seen in Pakistan’s history, Bush and McCain seem to lack a grip on reality as they continue to stand by their man so obstinately.

Pakistan’s leading politicians have treated the Bush administration’s efforts to plead Musharraf’s case as the punch line to a bad joke, agreeing to form a coalition government that doesn’t include any lingering remnants of Musharraf’s party, as Washington would have preferred. Reports indicate that the framework underlying the new coalition government will be a revived version of the Charter of Democracy, a preconstitutional declaration signed by Nawaz Sharif and Benazir Bhutto on behalf of their parties in 2006 (and about which I’ve written previously). The Charter — which, among other things, pledges to restore the Pakistan Constitution to its pre-Musharraf state and proscribes its civilian signatories from seeking military support for partisan political advantage — was almost rendered a nullity by the Bush administration’s efforts to broker a deal between then-army chief Musharraf and Bhutto. With an agreement between the major political parties for its revival, however, the prospects for rolling back the legal and institutional damage wrought by Musharraf’s Emergency may now be considerably increased.

What would rollback entail? Personality-driven media reports in the United States have emphasized the possibility of impeaching and removing Musharraf from office. Such a move — which might be understood to implicitly concede the legitimacy of Musharraf’s highly contested reelection as president — would require a two-thirds majority vote in the National Assembly, which the coalition may or may not attain, and sufficient support in the Senate, which remains stacked with Musharraf supporters. However, in speculating about impeachment, these news reports seem to have the math of rollback precisely backwards. Far from being a “legitimately elected” president, as McCain would have it, Musharraf’s suspension of the Constitution in November “by use of force or show of force or by other unconstitutional means” has rendered him potentially guilty of “high treason” under Article 6 of the Pakistan Constitution. In the past, Pakistani coup leaders (including Musharraf himself after his first coup) have avoided prosecution for treason by strongarming the incoming parliament into amending the Constitution specifically to indemnify their extraconstitutional actions — an act which itself requires a two-thirds vote. Musharraf’s opponents, therefore, do not need two-thirds support in parliament to resist him. Rather, it is Musharraf himself who needs two-thirds support from parliament to avoid the possibility of being charged with treason. In a parliament now dominated by Musharraf opponents, that indemnification obviously will not be forthcoming, although it is possible that the parliament would be willing to indemnify him in exchange for his resignation or other concessions.

The only thing potentially standing between Musharraf and a treason prosecution, other than the exercise of prosecutorial discretion, is his own unilateral order purporting to indemnify himself. That decree is of highly questionable legality, but if the new parliament nullifies the many laws and constitutional amendments that Musharraf tried to decree during the Emergency, then that order would in any event be swept away as well. (Indeed, the Charter of Democracy pledges to go even further by rolling back Musharraf’s earlier constitutional amendments, some of which grabbed power for the presidency and the army at the expense of parliament and the prime minister.) Moreover, if the new parliament restores judicial independence, by reinstating the approximately 60 judges who refused to swear loyalty to Musharraf in November, then it is unlikely that the Pakistan Supreme Court would uphold Musharraf’s attempt at self-indemnification. (Most notable among these judges, of course, is Chief Justice Iftikhar Muhammad Chaudhry, whom Musharraf, carrying himself in a highly presidential manner, recently called “the scum of the earth, a third-rate man, a corrupt man” in an interview with Jemima Khan.) A restored Supreme Court might even invalidate Musharraf’s reelection as president, as it apparently had been poised to do on the eve of his crackdown in November.

Would either the invalidation of Musharraf’s decrees or the restoration of Pakistan’s ousted judges require a two-thirds vote of parliament? Both Chaudhry and Aitzaz Ahsan say no, and it would be rather odd if the answer were otherwise. (For his part, Musharraf has opined that “[l]egally there’s no way this can be done,” but we can safely leave his legal opinion to one side for the moment.) Even if Pakistanis were to avert their gaze from the extraconstitutional illegitimacy of Musharraf’s actions — and the election results seem to demonstrate, rather decisively, that they have not done so — there seems no reason why the incoming parliament could not invalidate those actions by a simple majority or even just an order by the prime minister, especially given the massive repudiation of the legitimacy of Musharraf’s Emergency by the Pakistani people. As Chaudhry has said, “I was deposed by an Executive Order and I can be restored by an Executive Order. There is no need of two-thirds majority of Parliament.”

Math aside, how far the new government will be able and willing to go in directly confronting Musharraf remains unclear. The extent to which the Pakistan Army will back Musharraf in any constitutional confrontation also remains somewhat uncertain. Ahsan and the lawyers’ movement have called on the new parliament to restore the ousted judges before March 9th, the one-year anniversary of Musharraf’s initial attempt to oust Chaudhry, and have indicated that they will conduct a “long march” to Islamabad if that doesn’t happen.

Clearly, the election results and formation of a new coalition government are only the first steps towards rollback. The intensity of Pakistan’s constitutional politics remains high, and the path to fully achieving rollback remains a challenging one. Still, many Pakistanis now rightfully feel, with Mohsin Hamid, “a cautious, soul-gladdening optimism.” Maybe even the “audacity of hope.”

Now available on SSRN:

This Article proposes privacy as a descriptive and normative framework to analyze the constellation of recent initiatives to expand interior enforcement of federal immigration laws. By expanding the circumstances in which individuals are expected to demonstrate their lawful presence in the United States, these various initiatives seek to transform the significance of immigration and citizenship status in day-to-day life from something largely invisible and irrelevant to something visible and salient in a variety of settings. This transformation, however, carries underappreciated social costs. Building upon scholarship theorizing privacy as protecting a set of social or structural interests, and using the Supreme Court’s decision in Katz v. United States as a conceptual starting point, the Article argues that recognizing and protecting immigration and citizenship status privacy in certain contexts serves valuable social purposes. While the Fourth Amendment itself may ultimately establish a weak constraint against interior enforcement, in other contexts courts and state and local governments have increasingly recognized and protected privacy interests in immigration and citizenship status in precisely these structural terms. Although these responses represent only a partial solution to the privacy-related harms that may arise from expanded interior enforcement, they contribute to a public conversation that may recognize more directly the social value of preserving zones in society in which status remains invisible, irrelevant, and private.

Your Call, Jan. 2, 2008 - Pakistan After Benazir (KALW 91.7 FM)

What has been the fall-out of Benazir Bhutto’s assassination? On the next Your Call we speak with a panel of South Asians about the events since the bomb in Liaquat National Park. Bhutto’s 19-year-old son has been pushed to the helm of the Pakistan People’s Party. President Musharraf says elections will be delayed until February but can the weakened Musharraf stay in power until then? The United States has had close involvement in the politics of Pakistan for nearly four decades: what role should it play now? It’s Your Call, with Sandip Roy and you.

Guests:
Anil Kalhan in New York
Visiting Professor of Law at Fordham University Law School

Sharmeen Obaid in Pakistan
Documentary filmmaker and reporter who has covered the aftermath of terrorism’s rise in South Asia

Ahmed Junaid in Williamsburg, VA
Author and a leader in Pakistan’s expatriate community of liberal Muslims.

Click to Listen: Pakistan After Bhutto

(Posted at Dorf on Law)

This week, the Pakistan People’s Party named Benazir Bhutto’s son, Bilawal, as chairperson of the party, even though he is only 19, still in college, and will not be leaving school to become a full-time politico just yet. His father Asif Ali Zardari and two others will serve as regents in the interim. Certainly, young Bilawal has to be one of the world’s first major political leaders to have an active Facebook page at the time he entered politics. It’s hard not to understand and agree with Tariq Ali’s response to the news:

The Pakistan People’s Party is being treated as a family heirloom, a property to be disposed of at the will of its leader.

Nothing more, nothing less. Poor Pakistan. Poor People’s Party supporters. Both deserve better than this disgusting, medieval charade.

* * *

That most of the PPP inner circle consists of spineless timeservers leading frustrated and melancholy lives is no excuse. All this could be transformed if inner-party democracy was implemented. There is a tiny layer of incorruptible and principled politicians inside the party, but they have been sidelined. [link]

In the immediate aftermath of losing the charismatic Benazir as its leader — and on the eve of a national election — I suppose it’s not altogether surprising that the PPP’s leadership would readily defer to the wishes expressed in her will by turning to a familiar name to serve at least as the symbolic leader of the party. (I’m not so sure he’s a familiar face to most Pakistanis, especially since he’s spent much of his short life abroad and out of the public eye. Indeed, as you can see from the photo above, his “Facebook” profile doesn’t even have a “face.”) And we don’t need to single out Pakistan — dynastic politics of one form or another are a way of life to varying extents in many countries, including such celebrated democracies as India and the United States. (One observer has even described dynastic politics as an “American tradition.”)

Still, as Ali also noted last week, “[t]o be dependent on a person or a family may be necessary at certain times, but it is a structural weakness, not a strength for a political organisation.” I suspect that it will take stronger and more durable electoral processes outside of the political parties, in Pakistan more generally, in order to catalyze greater internal democracy within the political parties. Would that be enough? Perhaps not. Indira Gandhi and her spawn retained a dominant role within the Congress Party even after being voted out of power in 1977, and of course the 2008 election here in the United States could end up replicating the “Benazir-Nawaz-Benazir-Nawaz” pattern of 1990s Pakistan with a crudely analogous (and longer-lasting) “Bush-Clinton-Bush-Clinton” pattern of our own. (Grover Norquist thinks we need a constitutional amendment to put a stop to all of this.)

But the importance of meaningful electoral processes cannot be dismissed altogether, since they do create spaces where other political leaders can emerge. Free and fair elections also would give the public as a whole something they did not really have in Pakistan even during the 1990s: an opportunity to hold parties accountable for their internal decision-making by voting their leadership out of political office, no matter what families those leaders come from. After all, contrary to speculation from as recently as the summer of 2006, we are not going to see Jeb Bush’s name on the primary ballots this spring, and were he a candidate, I can’t imagine that he would have carried the Bush dynasty to a resounding victory.

Related post: The Math of Rollback

Continue reading at BusinessWeek….

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.”