Anil Kalhan

(Posted at Dorf on Law)

Perhaps it’s fitting that Pakistan’s latest crisis has come just as the television series Battlestar Galactica (whose final episode airs next week) is drawing to a close. Between the Musharraf Supreme Court’s controversial decision to declare Pakistan Muslim League-N leaders Nawaz Sharif and Shahbaz Sharif ineligible to hold public office, President Asif Ali Zardari’s decision to crack down on the lawyers’ movement and other opponents, and the State Department’s apparent decision, at least initially, to respond to the crisis somewhat tepidly, one is left, wearily, with the irresistible sense that all of this has happened before, and all of it will happen again.

To refresh our collective recollection, Zardari’s ascent to power last September came on the heels of an unprecedented movement in which Pakistan’s lawyers and ultimately its electorate decisively rejected then-General-cum-President Pervez Musharraf’s interference with the independence of Pakistan’s judiciary and his authoritarian, martial law-like crackdown on his opponents in the guise of “Emergency.” Like Benazir Bhutto before him, Zardari pledged on many occasions after the election to fulfill the key demands that stirred this mass movement to action: restoration of the judges unlawfully ousted by Musharraf, and in particular, restoration of Chief Justice Iftikhar Muhammad Chaudhry. Zardari also promised to roll back the powers accumulated in the presidency by Musharraf, restoring the supremacy of Pakistan’s parliament. Well over a year has passed since Pakistan’s electorate delivered that mandate. However, Zardari’s government has neither restored Chaudhry to his position, nor rolled back any of the other extraconstitutional actions taken by Musharraf during the Emergency, nor repealed the sweeping executive powers instituted by Musharraf.

Now, with Musharraf’s still-lingering Supreme Court declaring Zardari’s PML-N rivals ineligible to hold office, Zardari’s government has dismissed the PML-N government in Punjab and imposed Governor’s Rule, leading to civil and political unrest throughout the province. In response to this week’s second anniversary of Chaudhry’s suspension by Musharraf, the lawyers’ movement already had planned a second “Long March” on Islamabad, from March 12 to 16, seeking restoration of Pakistan’s pre-November 2007 constitution and reinstatement of all judges ousted during the Emergency.

Apparently feeling the political heat, Zardari then discovered his inner Musharraf — not on the golf course, as he previously had told the world he would have preferred, but rather in the authoritarian laws inherited from the British:

[P]olice and intelligence officials carried out early-morning raids across Punjab and Sindh, arresting more than 300 lawyers and political activists…. The crackdown began late Tuesday night, with the government invoking Section 144 of the 1860 Penal Code, a law from the British colonial era that forbids public gatherings of four or more people. As whispers of imminent arrests gathered momentum and local television channels exhibited lengthy lists of intended targets, many prominent lawyers and politicians went into hiding, just as they did during a crackdown operated by former President Pervez Musharraf….

Indeed, many of the people allegedly on the lists were last arrested in late 2007, when Musharraf imposed emergency rule….

Athar Minallah, a prominent lawyer, maneuvered himself out of being arrested from the driver’s seat of his car. “I locked myself in the car, and the police didn’t know how to get me,” he said. “So I called the television cameras who were only two minutes away. I began giving live interviews from the car, addressing the Interior Minister, Rehman Malik, directly. After a while, Mr. Malik came down himself and shouted the police officers away.” [link]

Perhaps seeking to out-Musharraf Musharraf, Zardari’s government has even played the terrorism card.

During the 2008 campaign, President Obama sharply criticized the Bush administration’s approach to Pakistan, asserting that by

coddl[ing] Musharraf, we alienated the Pakistani population, because we were anti-democratic. We had a 20th-century mindset that basically said, ‘Well, you know, he may be a dictator, but he’s our dictator.”….

That’s going to change when I’m president of the United States. [link]

So how has the new administration responded to this week’s events? State Department spokesperson Robert Wood’s initial response did not go all that smoothly:

‘You haven’t been clear at all about where the US stands on what’s going on in Pakistan,’ said a journalist.

‘I have given you what our position is. I can’t give you an assessment of what’s taking place right at this moment on the ground,’ said Wood.

‘That’s not what I’m asking. I’m asking, what is your position on reinstatement of the chief judge,’ the journalist asked.

‘That’s something that’s going to have to be determined by the Pakistanis in accordance with their laws and their constitution. I can’t go beyond that,’ said Wood.

‘But when President Musharraf installed a state of emergency to avoid the reinstatement of the judges, you had called for the reinstatement of the judges,’ the journalist reminded him.

‘Look, I’m giving you what the policy is right now. And as I’ve said, this is something that needs to be worked out within Pakistan’s political sphere in accordance with its laws. That’s about the best I can give you,’ said Wood. [link]

Still, to their credit, Wood and other diplomats, including special envoy Richard Holbrooke, have publicly expressed concern about Zardari’s restrictions on freedom of assembly and freedom of speech, and have urged Pakistan to act in accordance to the rule of law. Will it make any difference? As when the crisis over the judiciary first began, hum dekhenge. Again, and still.

(Posted at Dorf on Law)

Like a number of others, I did a series of double takes upon hearing some of John McCain’s comments on Pakistan during this exchange in last night’s presidential debate:

MCCAIN: Now, on this issue of aiding Pakistan… We’ve got to get the support of the people of — of Pakistan….

OBAMA: [T]he problem, John, with the strategy that’s been pursued was that, for 10 years, we coddled Musharraf, we alienated the Pakistani population, because we were anti-democratic. We had a 20th-century mindset that basically said, “Well, you know, he may be a dictator, but he’s our dictator.”

And as a consequence, we lost legitimacy in Pakistan. We spent $10 billion. And in the meantime, they weren’t going after Al Qaida, and they are more powerful now than at any time since we began the war in Afghanistan.

That’s going to change when I’m president of the United States.

MCCAIN: I — I don’t think that Senator Obama understands that there was a failed state in Pakistan when Musharraf came to power. Everybody who was around then, and had been there, and knew about it knew that it was a failed state. [link]

Perhaps McCain is being tutored on foreign policy by his vice presidential nominee, because I got lost in a hailstorm of nonsense there. McCain’s insistence upon the need “to get the support of the people of Pakistan” is all well and good — and I’m sure that the people of Pakistan would have welcomed that sentiment back in the winter, when Musharraf was trampling all over them. Instead, McCain unconditionally backed Musharraf at every turn, hailing the General as a “legitimately elected” president in the face of all evidence to the contrary. McCain even went so far as to call Musharraf a “scrupulously honest” man who had “done a pretty good job” and deserved the “benefit of the doubt” in the aftermath of his Emergency and Benazir Bhutto’s assassination. I do not know when, precisely, the moment was when McCain looked into Musharraf’s eyes and got a sense of the man’s scrupulously honest soul, but McCain’s character reference came several years after the Pakistani public got a good look for themselves, when the General brazenly reneged on a public promise that he would step down as army chief of staff.

But what should we make of McCain’s puzzling claim that Pakistan was a “failed state” before Musharraf’s 1999 military coup? The assertion goes well beyond defending the Bush administration’s unconditional support for Musharraf in recent years against Obama’s criticism. Rather, McCain necessarily seems to be asserting that Musharraf’s decision to overthrow Pakistan’s democratically elected government in the first place was justified. It turns out McCain has made this assertion before, asserting on the campaign trail in Iowa that Pakistan was a “failed state” before Musharraf came to power because it “had corrupt governments and they would rotate back and forth and there was corruption.” Of course, reasonable people can certainly disagree about how precisely to define a “failed state,” but it seems a stretch to put late-1990s Pakistan in that category. It’s also not as if Pakistan fared particularly well in this respect under Musharraf. At least according to the index developed by the Fund for Peace and Foreign Policy, Pakistan was at pretty serious risk of becoming a “failed state” during each of the last three years of Musharraf’s tenure as president. In any event, having “corrupt governments [that] rotate back and forth” certainly cannot be what defines a “failed state,” as McCain would have it. By McCain’s definition, one might conclude that India was a failed state in the late 1980s and again in the late 1990s.

McCain’s justification of Musharraf’s 1999 military coup is yet another example in which he seems to be singing a rather different tune than he was eight years ago. Recall that McCain was running for president when Musharraf overthrew Nawaz Sharif in 1999 — indeed, he was explicitly asked for his views about Musharraf’s coup in an interview only a few weeks later:

LARRY KING: How about military takeover bringing stability in Pakistan?

MCCAIN: Well, it may have brought some semblance of stability, but we only want the institutions of democracy that — to prevail in this and every other country in the world, and to have to resort to a military coup is not something the United States should support. The — I think [Gov. Bush's] point was that this was a very corrupt government that was overthrown, but it’s — in my view, it’s still not a reason to overthrow it. It’s a reason for us to do everything we can to help clean up that corruption and have the rule of law prevail in Pakistan and every other country in the world. [CNN, Larry King Live, Nov. 15, 1999, via Nexis]

UPDATE (9/28/08): Teeth Maestro rounds up some reactions to the debate by Pakistani bloggers at Global Voices.

UPDATE (9/30/08): Matthew Yglesias reports that he asked William Milam — who, as U.S. Ambassador to Pakistan at the time of Musharraf’s 1999 coup, “was certainly ‘around then’ and ‘had been there’” — for his view of whether Pakistan was a “failed state” before Musharraf assumed power. Milam’s response:

[W]hile there were a lot of things wrong in Pakistan during the years leading up to the 1999 military takeover, Pakistan was not a failed state as we normally define such states. I am on record as stating publicly that, having come to Pakistan from Liberia a year before the takeover, I had a pretty good idea of what failed states look like, and [Pakistan] was not one. [link]

(Posted at Dorf on Law)

For decades, the late Vincent “the Chin” Gigante was renowned for his methodical efforts to convince the world that he was crazy. Or, if not the world, at least the judges before whom prosecutors sought to convict the well-known crime boss on charges ranging from bribery and racketeering to conspiracy to commit murder. Gigante went to painstaking lengths to convey the appearance that he was mentally ill and therefore incompetent to stand trial, wandering around Greenwich Village in his bathrobe and slippers while either muttering to or having boisterous arguments with himself. (And on occasion, for good measure, scooping up cigarette butts off the sidewalks and trying to smoke them.) While the so-called “oddfather” never received the Oscar that he so richly deserved, he did manage to avoid facing trial for many years before finally being tried and convicted by a jury in connection with a conspiracy to murder a former associate in 1997. Gigante ultimately was forced to admit in 2003 that his decades-long performance was indeed a ruse, and he accordingly pleaded guilty to obstruction of justice. Along the way, dozens of prominent experts offered confident diagnoses asserting that Gigante was in fact mentally ill.

Today, many Pakistanis are wondering whether they have an “oddfather” of their very own, in the person of Pakistan People’s Party co-chairperson Asif Zardari, the artist formerly known as “Mr. Ten Percent” and the widower of former Pakistan Prime Minister Benazir Bhutto:

[C]ourt documents filed by Mr Zardari’s doctors suggest he had been diagnosed as suffering from a series of serious conditions including severe depression, dementia and post-traumatic stress disorder. He had even experienced suicidal thoughts….

The details of Mr Zardari’s mental health examination, revealed yesterday by the Financial Times, were presented to a court in London to support an application to delay a now-defunct corruption case that was being brought against him by the Pakistan government. His lawyers presumably were looking for reasons to persuade the court to postpone the hearing – something they were successful in achieving. [link]

**

Zardari could remember neither the birthdays of his wife and children, nor more than a handful of facts from two short stories he was read. “He had difficulty focusing, concentrating and paying attention, is persistently sad, chronically anxious and apprehensive. He stated that he has had suicidal thoughts, but has not made any suicide gestures,” Mr. Reich wrote.

Another March 2007 diagnosis – by Philip Saltiel, a New York City-based psychiatrist – said emotional and neurological problems suffered by Mr Zardari because of medical treatment and imprisonment had resulted in “emotional instability” and “deficits in memory and concentration”. Mr Saltiel wrote: “I do not foresee any improvement in these issues for at least a year.” [link]

Almost a year and a half later, the revelations about Zardari’s court filings place him in a bit of a quandry. On the one hand, as with Gigante before him, the opinions offered by Zardari’s experts may have helped fend off some of the many court cases around the world charging him with corruption and fraud. On the other hand, in the aftermath of Pervez Musharraf’s resignation, Zardari now wants to become president of Pakistan himself, and is the presumptive nominee for that office of his party and, apparently, of the Bush administration, which has rather clumsily dropped whatever pretense of neutrality it had left. Of course, one might readily believe that having a touch of the crazy is a time-honored prerequisite to holding high political office. However, the Pakistan Constitution does not permit an individual to become president if he or she has been “declared by a competent court to be of unsound mind,” and authorizes removal of the president on the ground of “mental incapacity.” Even in the absence of any formal court order declaring him of “unsound mind,” therefore, Zardari may have placed himself in the somewhat awkward position of having rendered himself potentially removable — through his very own defense strategy — from the moment he is sworn into office.

Zardari’s associates claim that he’s not crazy, he was just a little unwell. (I know, back then you couldn’t tell.) After all, they note, Zardari languished in prison for many years, claims to have been tortured, and even feared being killed while in custody. Under such circumstances, says Zardari friend Wajid Shamsul Hasan, “[a]ny human being” would have suffered. Zardari’s true condition is, of course, difficult for any outsider to assess. And certainly one can and should have sympathy for the possibility that he could have suffered mightily if subjected to torture and inhuman treatment while in prison, as he has claimed. Nevertheless, Zardari’s associates seem to be suggesting that during the past year — in which he has endured not only the trauma of his wife’s tragic assassination, but also the stress of being unexpectedly thrust into a high stakes leadership position — his earlier afflictions not only have not been exacerbated, but in fact have gone away altogether. He has now fully recovered, they say, and is “fit as a fiddle.”

Whatever the actual state of Zardari’s mental health, Pakistan’s lawyers and judges must continue to find themselves perplexed by Zardari’s behavior since Pakistan held elections back in February. More than six months after the Pakistani electorate decisively repudiated Musharraf and made clear its desire to see the reinstatement of Chief Justice Iftikhar Muhammad Chaudhry and the other judges ousted by Musharraf, Zardari’s government has yet to make any meaningful effort to reinstate those judges or roll back the other constitutional changes that Musharraf imposed by decree during the Emergency. Zardari has broken one promise after another about the judges to his coalition partner, Nawaz Sharif, leading Sharif to temporarily pull his Pakistan Muslim League ministers out of the cabinet back in May and, more decisively, to pull his party out of the government altogether earlier this week. Zardari has openly acknowledged reneging on his deals with Sharif about the judges, the most recent being a written agreement to reinstate all of the ousted judges within 24 hours after Musharraf’s impeachment or resignation. Zardari has justified breaking his word by asserting that his agreements with Sharif are “not holy like the holy Quran and the Hadith,” but rather can be modified as convenient. Somewhat inconveniently, however, with his latest agreement Zardari also reportedly told Sharif, “Let’s take an oath on the Koran this time that I will fulfill all my promises.”

And the mixed messages continue. Last week, Zardari told Newsweek that he “personally [is] in favor of the chief justice, but there is a position in the party, which says that he has become too politicized in the last many months and he has been leading rallies.” This week, by contrast, Zardari cryptically said that “perhaps [he] cannot reveal the whole truth to the nation” about why he has been unwilling to move forward with the reinstatement of all of the ousted judges. Zardari also was reported to have suggested that a coalition partner, the Awami National Party, supported him in opposing restoration of all of the ousted judges, but later was forced to “clarify” that statement through a party spokesperson after the ANP protested to the contrary that they have consistently supported restoration of all of the ousted judges.

In the aftermath of the February elections, Zardari was hailed by many as a statesman for his role in building a broad coalition aimed at national reconciliation — and for being able to do so only weeks after mourning his wife’s death. With respect to the judiciary, however, more recent reviews of Zardari’s performance have been decidedly less favorable. Reports have consistently indicated that the principal source of Zardari’s reluctance to permit reinstatement of all of the judges ousted by Musharraf — and his reluctance, in particular, to see the Chief Justice return to office — is a fear that independent judges might permit the corruption charges against him to go forward. (Pressure from the Bush administration not to restore the judges could well be another factor.) However, Zardari’s own experience suggests that perhaps he has nothing to fear from an independent judiciary at all. Maybe he simply needs to press his legal and medical experts back into service, and to invest in a nice bathrobe and a comfortable pair of slippers.

(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.”

(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

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.”

(Posted at Dorf on Law)

No, I’m not referring to any physical damage associated with my jaw dropping to the floor upon hearing George Bush say that Gen. Mr. Pervez Musharraf has not “crossed any lines” in his full-scale assault on civil society. There are so many things to be said in response to that ridiculous statement, but one particularly disturbing irony seems to stand out.

We have long known that when it comes to torture, the Bush administration has at times drawn “the line” in a rather peculiar place, at one point seeking to limit the definition of torture to acts “likely to result in permanent and serious physical damage … ris[ing] to the level of death, organ failure, or the permanent impairment of a significant body function.” Well, after several weeks in which many have feared that Musharraf, Shaukat Aziz, and their agents might be perpetrating unspeakable crimes in Pakistan’s jails, it now appears that Musharraf has crossed even the dubious “line” drawn by the 2002 Office of Legal Counsel memo:

Former president Supreme Court Bar Association of Pakistan Mr Munir A. Malik has suffered renal failure. He has been shifted to ICU in PIMS where he is undergoing kidney dialysis. In panic, Musharraf has lifted the detention orders on Munir A. Malik.

For the last 2 weeks leading lawyers’ and HR organizations worldwide have been calling upon Musharraf to release Munir A. Malik from detention. Asma Jahangir had written in her letter (to HR organizations worldwide) that Munir A. Malik has been tortured by intelligence agencies.

The News is also reporting that Munir Malik has told doctors that he was served juice in Attock jail. Upon drinking the juice his condition start deteriorating. Since then his kidneys have failed and doctors are also concerned about liver function. [link]

See the interview with Malik in his hospital bed by Dawn News (in English) in the first video above. (The second video is the first part of Malik’s spirited address on the importance of separation of powers, sprinkled with Urdu but mostly in English, to the Supreme Court Bar Association earlier this year after the reinstatement of the Chief Justice of Pakistan. The full, translated text of that address and part two of the video are available here.)

Malik’s apparent poisoning is not the only atrocity committed by Musharraf against his civil society opponents:

Mr. Munir is one of four eminent advocates, all of whom were linked to the Chief Justice’s restoration struggle, who were incarcerated on November 3rd — the other three being Mr. Ali Ahmed Kurd, Justice (Retd.) Tariq Mahmood and Aitzaz Ahsan. There are persistent rumours that Mr. Kurd and Justice Mahmood have been subjected to barbaric physical torture. These rumours are lent credence by the fact that Justice (Retd.) Tariq Mahmood too has been shifted to Services Hospital from jail in ‘critical condition’ on the night of November 25th. Furthermore, no family members or media personnel have been allowed to visit him either in jail or hospital. Mr. Aitzaz Ahsan was seen in public on November 25th when he came to submit his nomination papers under police guard. He appeared visibly ‘pale and weakened’, according to eye witnesses, as he was escorted to and from the Sessions Court, Lahore, having been shifted to house arrest from Adiyala Jail. [link]

—–

The moving ordeal of an ailing but defiant Justice (retd) Tariq Mahmood lodged in the Sahiwal jail for the last 23 days, as narrated by his struggling wife, brought tears to the eyes of hundreds of members of the civil society and political workers who watched the ‘Capital Talk’ show of Geo TV live on the footpath of Islamabad on Monday.

Justice Tariq, once the top judge of the Balochistan High Court, who had resigned after refusing to conduct the controversial presidential referendum of 2002, was now being made to sleep on the cold floor of the Sahiwal jail to break his nerves and punish him for his acts of defiance since he quit the judiciary to register his protest.

As his health condition deteriorated in the Sahiwal jail, Tariq Mahmood who is said to have developed severe back pain has now been rushed to a Lahore hospital for his medical tests.

* * *

‘My 11-year-old son keeps asking daily since November 3, where is my father. Now I have run out of words to tell him where is he,’ Mrs Tariq said in a choking voice that greatly moved all the participants of the talk show. [link]

More links and a roundup are available at Sepia Mutiny.

So it seems that we are left to ask, yet again: exactly where does the Bush administration draw “the line” when it comes to torture? It is also worth recalling in this context that Musharraf’s original attempt to sack Chief Justice Iftikhar Muhammad Chaudhry came exactly one day after Chaudhry made clear that the Supreme Court of Pakistan would investigate the disappearances of hundreds of individuals since 2001. The Bush administration was silent about Musharraf’s interference with judicial independence then, and it continues to be silent about the importance of judicial independence in Pakistan today. Many Pakistani citizens, of course, have not been.

(Posted at Dorf on Law)

So Gen. Musharraf appears to be engaged in a global war on journalism after all. Two weeks after commencing his crackdown on Pakistani civil society, which effectively turned news into contraband, Musharraf has now begun to allow some independent television networks back onto cable television — but only if they agree to a number of conditions, such as terminating television shows critical of the regime and signing an undertaking of “good behavior” permitting the government to interfere with their operations, seize their equipment, and terminate their licenses at any time. Some networks are now back on the air, albeit in “laundered” form — AAJ TV, for example, is back but without a number of leading talk shows that have been critical of Musharraf. (The BBC and CNN are also back, but since they, along with Dawn News, are broadcast in English, the authorities are not as concerned about what they might say in their broadcasts.)

Musharraf’s imposition of these conditions is the direct analogue for the electronic media of the mechanisms he has used to purge the judiciary. Just as he has required all judges to swear new oaths of allegiance to his provisional constitutional order if they wish to remain in office, Musharraf has now imposed a requirement on all “independent” media that in practice they swear loyalty to him if they wish to remain on the air. Having packed the courts with his “pocket judges,” Musharraf now is trying to make sure that the only television journalists being seen and heard are his own “pocket journalists.” But Musharraf is apparently not content with preventing individuals within Pakistan from hearing voices critical of his regime. Rather, he has now made his war on civil society truly a global one, pressuring the government of the United Arab Emirates to shut down two Pakistani television networks, GEO TV and ARY Digital, which originate and uplink from Dubai and are watched by many individuals outside of Pakistan:

Informed sources said President Pervez Musharraf himself intervened to stop all GEO news transmissions from Dubai, after a two-week standoff in Pakistan during which all major news networks were shut down by cable operators, who are directly controlled by the Pakistani authorities.

The shutting down of the Geo News was universally condemned by almost every political party and member of the civil society minutes before the anchors, almost in tears, signed off.

* * *

Popular news anchors came on Geo News around midnight Pakistan time to announce that their channel had been ordered to go off the air as result of the continued deadlock between the Pakistani authorities and the media channels, following the imposition of the emergency in the country.

In Pakistan all GEO channels were blocked by the military regime after the imposition of the emergency but on Friday two main channels, DAWN News and AAJ were back on air, with AAJ announcing that two its most popular talks shows, hosted by Talat Hussain, Nusrat Javeed and Mushtaq Mihas, were suspended temporarily. [link]

With his personal intervention with the UAE government to shut down GEO and ARY Digital, Musharraf has made his battle with civil society a global one. Many thousands of individuals all over the world, including Pakistani expatriates and others, have long relied upon these networks, and while Musharraf during the past two weeks has shut down domestic access to these channels via cable television, these channels have continued to be available via live video streams online and directly via satellite. As a result, many in Pakistan have continued to obtain news from these TV networks — either directly, via live internet streams or satellite dish reception, or indirectly, as news is relayed to Pakistani citizens via phone calls and text messages from friends and relatives outside of Pakistan.

Ironically, when launching several years ago, both networks decided to originate and uplink their broadcasts from Dubai in part to try to minimize interference by the government of Pakistan with their operations. Musharraf’s willingness to intimidate the UAE government shows that strategy wasn’t foolproof. But one also has to wonder whether Bush administration officials tried to exert any counter-pressure with UAE officials and failed, or whether they simply did not bother. Neither possibility inspires much confidence.

* * *

Western journalists and Bush administration officials persist in calling Musharraf’s coup a declaration of “emergency,” as if it were responding to a temporary exigency and as if normalcy could be restored simply by “lifting” Musharraf’s extraconstitutional declaration. It should be crystal clear by now that the damage to civil society wrought by Musharraf cannot be cured simply by “lifting” the current state of affairs. The proper constitutional category to describe Musharraf’s extraconstitutional declaration is not “emergency,” but rather “high treason,” which Article 6 of the Pakistan Constitution defines as any move to “abrogate[] or attempt[] or conspire[] to abrogate, subvert[] or attempt[] or conspire[] to subvert the Constitution by use of force or show of force or by other unconstitutional means.” The appropriate Western response under such circumstances therefore should not simply be to call upon Musharraf to “lift” his self-described emergency, but rather to insist upon “rollback” of Musharraf’s extraconstitutional — and now transnational — effort to systematically undermine Pakistan’s civil society institutions.

UPDATE (11/19/2007): A protest vigil outside GEO’s offices in Karachi apparently attracted close to 1500 people:

The vigil itself started off at around 7pm but I am told the crowd was present there well before the specified time, when I reached there it was truly an amazing sight in the entire lane you could only see candles lit with quite a few heavy speakers blarring the signature Geo song Jeenay Do.

There were approximately well over 1500 people present most honding some sort of placard denocning the martial law but practiclaly everyone had a candle and sang the song Jeenay Do. There were a number of large TV screens showing the live feed from Geo which was being streamed via the internet. The best part of the vigil was when the Geo Musharraf-lookalike took to the stage and had some fun with the crowd with some unique imitations of the dictator. It was good to see people coming out to raise their voice against the censorship of the media. [link]

(Posted at Dorf on Law)

Last week, Mike noted that Pakistan’s lawyers have not simply been joining the demonstrations against Musharraf’s anticonstitutional declaration of martial law, but have been leading the fight “at considerable and entirely predictable cost to themselves.” In today’s New York Times, Jane Perlez profiles one of those courageous lawyers, Aitzaz Ahsan:

Twenty-five years ago, when President Reagan treated Pakistan’s dictator, Muhammad Zia ul-Haq, to a White House state dinner, a promising young lawyer out of Cambridge University languished in jail. He had protested too loudly, and too often, about the lack of democracy in his country.

Now grayer and at the peak of his profession, the lawyer, Aitzaz Ahsan, 63, sits in a Pakistani jail once again, reduced to seeing family visitors for 20 minutes a day, and accepting bags of fruit and bedding for some basic comfort.

His crime is the same: making too much noise about democracy under the nose of a military ruler whom Washington has deemed indispensable to its strategic and security interests in the region. [link]

This is Ahsan’s second profile in the Times in less than four months, which must be a record of some sort. (I’ll bet SAJA can tell us if it is. The first profile, by Somini Sengupta, came at a more hopeful moment, in the immediate aftermath of the reinstatement of Chief Justice Iftikhar Muhammad Chaudhry.)

Reports have indicated that Ahsan and other leaders of the Pakistani lawyers’ movement may be at risk of torture at the hands of Pakistan’s military intelligence services. However, despite these risks, Ahsan continues to speak out forcefully against Musharraf’s anticonstitutional coup from his jail cell:

“It doesn’t matter where I have been or I would be kept in prison by the dictator, who breaches the Constitution twice and humiliated the judiciary many times.” Aitzaz said it was a great misconception on the part of the Musharraf regime that by putting thousands of lawyers, civil society members and political party activists in prison and by torturing them, it can avoid the massive resistive movement against their unconstitutional moves.

“Lawyers are already protesting and fighting against the dictatorship,” Aitzaz said and added: “The day we will come out of prison we will join the already fighting lawyers and will intensify the movement to restore the judiciary.”

“We want the rule of law, rule of the Constitution, an independent judiciary and a free media and we will fight for this till the last drop of our blood….”

He said Justice Iftikhar Muhammad Chaudhry was the real chief justice of Pakistan. “I and the whole nation salute all the 13 judges who refused to take oath under the PCO.” He said they are all great judges and are still the judges of the Supreme Court, Aitzaz said, adding: “The whole nation will become united to restore the real judges of the Supreme Court as it does not accept those as judges who took oath under the PCO.” [link]

Thirty-three members of the United States Senate have called for Ahsan’s release in a letter to Gen. Musharraf. If you’re in New York, you, too, can demonstrate your support for Ahsan and the rest of Pakistan’s lawyers’ movement by attending a solidarity rally being held today, Tuesday, November 13, from 1:00pm-1:30pm at the New York County Courthouse, 60 Centre Street. The lunchtime demonstration is being organized by the New York City Bar Association, the New York State Bar Association, and the New York County Lawyers’ Association, in conjunction with other organizations. Ahsan’s son, Ali, who is a lawyer in New York, will be speaking at the rally. More details here, here, and here.

If you’re outside of New York, the “We Oppose Emergency” blog may have announcements of future events. Lawyers to the barricades, indeed.

(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?

(Posted at Dorf on Law)

On Monday, George Bush said that Gen. Musharraf is a “a strong fighter against extremists and radicals.” Is this the reason why?

Appeal for support to lawyers and judges in Pakistan

I am fortunate to be under house arrest while my colleagues are suffering. The Musharaf government has declared martial law to settle scores with lawyers and judges. While the terrorists remain on the loose and continue to occupy more space in Pakistan, senior lawyers are being tortured.

The civil society of Pakistan urges bar associations all over the world to mobilize public opinion in favor of the judges and lawyers in Pakistan. A large number of judges of superior courts are under arrest. Thousands of lawyers are imprisoned, beaten and tortured.

In particular the cases of Muneer A Malik, Aitzaz Ahsan, Tariq Mahmood and Ali Ahmed Kurd are serious. Muneer A Malik, the former President of the Supreme Court Bar Association and leader of the lawyers’ movement has been shifted to the notorious Attack Fort. He is being tortured and is under the custody of the military intelligence. Tariq Mahmood, former President of the Supreme Court Bar Association, was imprisoned in Adiala jail. No one was allowed to see him and it is reported that he has been shifted to an unknown place. Mr. Ali Ahmed Kurd, former Vice Chair of the Pakistan Bar Council is in the custody of military intelligence and being kept at an undisclosed place. Mr. Aitzaz Ahsan, President of the Supreme Court Bar is being kept in Adiayala jail in solitary confinement.

Representatives of bar associations should approach their governments to pressure the government of Pakistan to release all lawyers and judges and immediately provide access to Muneer A Malik, Tariq Mahmood, Ali Ahmed Kurd and Aitzaz Ahsan. The bars are also urged to hold press conferences in their country and express their solidarity with the lawyers of Pakistan who are struggling to establish the rule of law.

Asma Jahangir
Advocate Supreme Court of Pakistan
Chairperson of the Human Rights Commission of Pakistan [link]

Why insisting upon elections is not enough

(Posted at Dorf on Law)

UPDATE (11/9/2007): An updated version of this post appears as a column this week for New America Media.

**

As the “emergency” extraconstitutional martial law regime of Pakistani dictator Pervez Musharraf enters its fifth day, more people in the United States have started to react. Most of these reactions — whether forceful, equivocal, or barely audible — have emphasized the importance, above all else, of making sure that the elections scheduled for January stay on track. But what happens when Musharraf and his banker-henchman-in-chief, Shaukat Aziz, lift the emergency and announce a date for elections, as they invariably will? Will critics then breathe a sigh of relief, celebrate the “restoration of Pakistan’s progress towards democracy,” and move on?

If so, then all of these Western critics will have been hoodwinked, and Musharraf will have achieved a near-complete victory. The purpose of Musharraf’s extraconstitutional move to hold the constitution “in abeyance” is not to prevent elections from ever taking place, or even necessarily to delay them at all. Rather, the point of Musharraf’s imposition of martial law is a more thoroughgoing “laundering” of Pakistan’s civil society institutions — including the judiciary, media, and mainstream political parties — in order to flush out any capacity they might have to serve as independent checks on his power. By itself, simply urging Musharraf to hold elections on schedule — or in the case of the Bush administration, gently suggesting that Musharraf think about that possibility if he’s bored and there’s nothing good to watch on television — is relatively meaningless. After all, when it comes to rigging elections, Musharraf has an enviable track record. Indeed, at least nominally even the current, outgoing national and provincial assemblies in Pakistan themselves were “elected.” And of course, strong civil society institutions would not be any less important after the election of civilian leaders.

Permitting Musharraf to succeed in his effort to launder the Pakistan judiciary could have far-reaching consequences, as this dispatch from Karachi suggests:

The [Provisional Constitutional Order] ensured that the best, most qualified judges of the Supreme Court and the High Courts were removed from their posts and placed under house arrest, but not before a final act of defiance that declared the PCO as illegal and unconstitutional. The few remaining members of the superior judiciary, who chose (or were pressured) to take a new oath under the PCO, have lost all legitimacy and are facing a boycott from lawyers. However, as a lawyer friend perceptively pointed out, the real threat comes from the new class of politically opportunist and ill-trained judges who will now be inducted en masse into the superior judiciary based on their loyalties to the ruling coalition. The consequences of this move are far-reaching and will affect a whole generation, though we are already beginning to see some indications. A small news item in today’s papers mentions a district judge in Sukkur who received a dismissal notice on Monday from the Sindh High Court immediately after issuing a show cause notice to an SHO (police official). The message is clear: courts are no longer empowered to question or interfere with the functioning of any executive agency. [via CM]

A more meaningful response, reflected, for example, in the statement issued today by the New York City Bar Association, would insist upon the full restoration of the rule of law as it had been emerging rather forcefully before the events of November 3. (Of course, this being a “coup within a coup,” an even stronger response would insist upon restoring the Constitution as it existed before the events of October 12, 1999, as called for by the Charter of Democracy. But let’s take things one step at a time.) That means adhering to the Pakistan Supreme Court’s unprecedented ruling (click on the image to the right for its text) that Musharraf’s extraconstitutional decrees are unlawful and that anyone who acts to implement them is, at minimum, punishable for contempt of court. (Initially, Musharraf’s “pocket judges,” as opposition leader Imran Khan calls them in the above video, tried to deny that the Supreme Court had issued any such ruling at all. However, once the Court’s order had been printed in newspapers and circulated all over the planet, the Pocket Court fashioned a new claim: that the order was a nullity because the justices who refused to swear new oaths of allegiance were no longer, in fact, judges at all. Watch this short video to see Shaukat Aziz coolly holding forth — mostly in English, so clearly for Western consumption — on the Alice-in-Wonderland-like legal principles underlying Musharraf’s extraconstitutionalism.) It also means insisting upon reinstatement of the many judges who courageously have refused to violate their current oaths of office by taking new oaths of allegiance to Musharraf’s martial law regime and, in most cases, have been thanked for their trouble with house arrest.

Critics who emphasize the importance of holding elections are by no means wrong to do so. After all, free and fair elections are critically important to the restoration of democracy and civilian rule in Pakistan. But to focus exclusively on delayed elections as the primary harm arising from Musharraf’s imposition of martial law seems manifestly to miss the point. Critics inclined to do so should be careful what they wish for — or more to the point, they should be careful not to wish for too little.

* * *

Meanwhile, the Bush administration has continued to respond forcefully and with an enormous sense of outrage and concern. A senior State Department official today escalated the Administration’s rhetoric, blasting Musharraf as “indispensable.”

(Posted at Dorf on Law)

It looks like what has been feared since the spring has actually happened. Echoing the trigger that led to Indira Gandhi’s imposition of emergency in India more than thirty years ago, reports are emphasizing that President Gen. Pervez Musharraf’s imposition of a state of “emergency plus” in Pakistan has come on the eve of the Pakistan Supreme Court’s decision concerning his eligibility to be elected as President. But the Court has been active in other ways this week that have undoubtedly made Musharraf uncomfortable, most notably its strong signal that it regarded former Prime Minister Nawaz Sharif’s rendition to Saudi Arabia to be unlawful and possibly in contempt of its earlier order permitting his return. “[W]e would like to emphasise that the judgment passed in Nawaz Sharif’s case is still holding the field and required to be implemented in letter and spirit,” noted Chief Justice Iftikhar Muhammad Chaudhry, and the Court’s decision in that case was expected this coming week as well.

So it’s hardly surprising that an early focal point of Musharraf’s crackdown — indeed, perhaps the sole and exclusive point — appears to be an effort to sideline the Pakistan Supreme Court:

“The Chief of the Army Staff (General Musharraf) has proclaimed state of emergency and issued provisional constitutional order,” the brief announcement said at 6.10 pm Pakistan time without giving any details.

Under the order, the constitution remains suspended, the federal cabinet ceases to exist and judges will have to take oath afresh.

Dawn news reports that the Army has entered the Supreme Court in Islamabad and has detained Chief Justice Ifthekar Choudhry. [link]

The imposition of a “provisional constitutional order,” to which judges must then newly swear allegiance to remain in office, is an old Pakistan Army magic trick, one that in the past has served as step one in a process that has helped conjure up the illusion, at least superficially, that some measure of constitutional normalcy remains even as the army in practice nullifies the constitution and imposes martial law. In the past, this process has led to the removal of judges who have refused to affirm their loyalty to the new provisional order and, ultimately, to legal validation of military rule itself. Musharraf himself issued a provisional constitutional order after his 1999 coup, and following the purge of five Supreme Court justices who refused to swear their allegiance to him, the Court greenlighted his coup.

However, it seems that on this occasion, the usual script might not be playing out as planned:

All members of the Supreme Court were required to sign a new provisional constitutional order mandating the state of emergency, but 8 of the 11 justices signed an order calling the state of emergency illegal and gathered at the Supreme Court building, said Gohar Khan. [link]

(UPDATE: the Court’s order, which was issued by a bench of seven justices before the Army could put the judiciary on ice, is available here.) Earlier this week, one justice stated in open court that the Court would not be cowed by the threat of emergency. “‘No threat will have any effect on this Bench, whether it is martial law or [state of] emergency,’ said judge Javed Iqbal. ‘Whatever will happen, it will be according to the Constitution and rules … No group should think that it can take the Supreme Court hostage.’” [link] As rumors swirled this week that an emergency declaration might be imminent, newly-elected Supreme Court Bar Association President Aitzaz Ahsan — who reportedly has been arrested — made clear that the Pakistani legal community would resist any such move. If early reports are to be believed, it seems that the justices may indeed be exhibiting such courage in the face of Rangers storming the Supreme Court building.

No word as yet on whether they are welcoming these events in Washington as “not necessarily the worst thing that could happen.” Whatever tepid and disingenuous objections the Bush Administration might now offer to what its pal Musharraf is doing, there seems little doubt that Pakistan has now been left to reap what the Bush Administration has helped to sow.

The Lahore, Islamabad , and Karachi Metblogs have more. (UPDATE: As does the ever-insightful Manan.)

**

(Posted at Dorf on Law)

(Just kidding. But now that you’ve been lured into reading a post about Pakistan….) As I briefly noted last week, General Pervez Musharraf rather quickly dashed former Prime Minister Nawaz Sharif’s hopes of a triumphal homecoming last week. After throwing hundreds of leaders and other supporters from Sharif’s political party in jail to prevent them from organizing a big welcome, Musharraf’s regime acquiesced to the invited entreaties of the Saudi intelligence chief by taking Sharif into custody at the airport in Islamabad, hustling him into an awaiting aircraft, and rendering him to Saudi Arabia.

Pakistani officials seemed to have some difficulty getting their story straight on exactly what transpired:

• Prime Minister Shaukat Aziz: “‘We did not force him to return. I have been told that he was given two options — either to go to prison or proceed to Saudi Arabia,’ the prime minister said in a live interview with a private television channel on Monday evening.” [link]
• Information Minister Mohammad Ali Durrani: “Nawaz Sharif has gone to Saudi Arabia according to the same agreement that took him there earlier.” [link]
• Musharraf backer Chaudhry Shujaat Hussain: “A few hours after the event, on the evening of 10th September, the PML (Q) chief Chaudhry Shujaat Hussain appeared on Geo television and disingenuously announced that the deportation had taken place entirely at the behest of the Saudis. And further, that while he and his party had demanded that Nawaz Sharif be given an unobstructed right of return to Pakistan, the written request of the ‘Custodian of the Two Holy Mosques’ had rightly been given precedence over domestic concerns.” [link]
• Pakistan’s Foreign Ministry: “When asked whether it was not paradoxical that on one hand the government criticised statements from foreign capitals on Pakistan’s domestic affairs and on the other hand it solicited intervention of other countries in its internal political issues, the spokesperson said: ‘We do not accept foreign interference in our internal affairs as we do not interfere in the internal affairs of other countries. This is an accepted, recognised international norm. As regards the ongoing events, well this is not in my domain. I would suggest you seek comments from other government spokespersons.’” [link]

Sharif is now once again a “guest” of the Saudi royals in Jiddah — a “guest,” that is to say, who apparently is being held incommunicado in what seems best described as “house arrest.”

Whatever else one might say about this sordid affair and its flawed protagonists, to say that Sharif was “deported” — as the Musharraf regime and most mainstream media have largely characterized the expulsion — doesn’t seem quite the correct way to put it. “Deportation” connotes the orderly explusion of a non-citizen pursuant to some sort of lawful, regularized process. Sharif, however, is a citizen of Pakistan who, as the Supreme Court of Pakistan explicitly said only weeks ago, has an “inalienable right to enter and remain” in his country of citizenship. Even assuming that the new corruption charges slapped upon Sharif at the airport have some merit, an assumption which certainly doesn’t require one to stretch the imagination all that much, the normal approach would of course be to try him on those charges in Pakistan, rather than to summarily banish him without trial to Saudi Arabia, where he hasn’t been charged with anything. And the process by which Sharif was expelled to Saudi Arabia — which seems to bear a family resemblance to the process by which one gets on a flight booked with Jeppesen International Trip Planning — was anything but orderly and lawful, as the many journalists and supporters who accompanied Sharif from London to Islamabad witnessed and recounted:

The authorities moved clumsily but quickly. Hospitality was swept aside. New charges of corruption were made against Mr Sharif and he was manhandled away. The Pakistani Government claims that he chose a return to exile rather than detention. The tea cups and biscuits were ground underfoot. Aside from a few scuffles and shouted insults, the test of strength was over in seconds. [link]

Human Rights Watch maintains that Pakistan and Saudi Arabia “have flouted international law by forcibly transferring Nawaz Sharif into exile.” Some Pakistani lawyers and human rights advocates have gone even further, arguing not only that Musharraf’s government should be held in contempt of court for violating the Supreme Court’s order that Sharif be permitted to enter and remain in the country, but even that the individuals responsible should be criminally charged with kidnapping:

Legal experts and lawyers representatives, terming it an open violation of the Supreme Court’s orders to send Mian Nawaz Sharif forcibly to Saudi Arabia, said the PML-N chief was abducted by Pakistani authorities since no Pakistani citizen can be deported under any law. The experts maintained that, according to section 363 of [Pakistan Penal Code], the military dictator can be punished with seven years imprisonment for sending Nawaz Sharif beyond the limits of Pakistan without his consent. [link]

* * *

Is the hidden hand in Sharif’s expulsion that of the office of the Vice President? The Musharraf regime has denied that the U.S. government played any role in Sharif’s rendition, and officially, Washington regards Sharif’s transfer from one allied country to another, across international airspace, as an “internal matter” for Pakistan. Yet, the sequence of events in this episode remains remarkably odd:

Believing in silent diplomacy and enjoying extremely good relations with Pakistan and its people, Riyadh not only sent its intelligence chief to Islamabad, but also asked it to re-exile Sharif as soon as he lands.

On the very day when Sharif was exiled, [Musharraf ally] Chaudhry Shujaat [Hussain] admitted in a Geo News talk show that not only he, but Musharraf was also of the view to allow Sharif’s entry into Pakistan.

Shujaat, however, disclosed that still the former premier was exiled because of Saudi rulers’ insistence that Sharif should be deported back to Riyadh. [link]

Reports of Washington’s involvement have abounded:

In the case of Sharif’s exile, some Middle Eastern countries had seriously tried to blackout the event that was being broadcast by private Pakistani television channels.

A journalist in one of these countries was clearly told by the local authorities that they are under pressure from Washington to do this.

Former Prime Minister Sharif initially wanted to come to Islamabad after seven years of exile via Dubai, but changed his mind after being warned that the Dubai authorities might divert him to Riyadh because of American pressure. [link]

And at least one unnamed Bush administration official could barely contain his glee at Sharif’s rendition:

One Bush administration official, declining to be identified because he was not authorized to speak publicly about the issue, said the deportation was “not necessarily the worst thing that could happen.” While the United States is loath to appear publicly as if it is interfering in Pakistan’s politics, the Bush administration has been urging General Musharraf to agree to a power-sharing deal with another former prime minister, Benazir Bhutto. . . .

The Bush administration official said that one hope now was that General Musharraf’s strong move against Mr. Sharif would enable him to stand up to Mr. Sharif’s allies in Pakistan and go ahead with the power-sharing deal. [link]

Regardless of whether the United States had any involvement, the whole episode seems to reflect rather poorly upon the State Department. Lots of U.S. taxpayer money gets spent every year on rule of law initiatives in Pakistan, and yet, when the Musharraf regime brazenly undermines the rule of law by openly defying a major ruling by the Supreme Court of Pakistan — which, with the support of many lower court judges and large segments of the Pakistani bar and civil society, has been exhibiting as much integrity and independence as at any time in its history — senior State Department officials proceed with high-level meetings with Musharraf as if nothing of concern had happened at all.

An even greater reckoning may be right around the corner:

Now Justice Chaudhry has set up a nine-member panel of Supreme Court judges to begin hearing two constitutional cases against Musharraf: the first disputing his right to seek re-election, the second his right to continue in high political office while heading the army.

Either could prevent Musharraf from staying in office beyond the next few weeks, in which case allies say he is ready to impose full military rule. “If the court confronts me, I’ll definitely use the option of martial law,” Musharraf told a senior party member recently, the newspaper said. [link]

What will our gleeful, unnamed Bush administration official be saying if that happens? And the State Department?

(Posted at Dorf on Law)

UPDATE (9/10/07): SHARIF BANISHED (AGAIN) — Musharraf has apparently made Nawaz Sharif’s stay in Pakistan a brief one, openly defying last month’s Supreme Court order and expelling him to Saudi Arabia. (Would it more appropriately be characterized as rendering? Or “kidnapping”?) Some Pakistani bookies will feel vindicated, but what happened to the Bush administration’s insistence last week that Pakistani leaders “honour the terms of Pakistani law and constitutional process“? Perhaps we all just misunderstood — maybe when the State Department spokesman said “honour … Pakistani law and constitutional process,” what he really meant was “do whatever the Saudi intelligence chief says“…. More details at SAJAforum and All Things Pakistan.

* * *

On the eve of the anticipated return to Pakistan of former Prime Ministers Benazir Bhutto and Nawaz Sharif to lead their parties in the coming elections, I have a column for AsiaMedia that tries to reframe somewhat the particular way in which U.S. observers have been characterizing the soap opera unfolding between Bhutto, Sharif, and General Pervez Musharraf and to consider some of the deeper issues that transcend the conflict among these personalities. As sometimes also happens with coverage of domestic politics, U.S. news coverage of the relationships among these three individuals at times has edged close to relying upon what NYU journalism professor Jay Rosen might describe as a “master narrative,” the “big story … that generates all the other stories.” In this case, the net result has been to obscure some of the more fundamental issues that lie beneath. In particular, the focus on the mutual antagonism between Musharraf and Sharif, on the one hand — who literally tried to kill each other in 1999 and 2000 — and the current negotiations between Musharraf and Bhutto, on the other, has obscured the third side of the triangle: the relationship between Bhutto and Sharif, and the larger issues at stake for Pakistan that arise from that relationship.

Bhutto’s unilateral, U.S.- and U.K.-backed negotiations with Musharraf raise questions about the fate of the Charter of Democracy, an important preconstitutional declaration that Bhutto and Sharif signed on behalf of their respective political parties in May 2006, when very few people in the United States were paying attention to developments in Pakistan at all. We often don’t think about the significance of preconstitutional documents like the Charter, but as Kirsten Matoy Carlson has argued, analysis of such documents can be helpful in “identifying and better understanding persistent constitutional tensions” within a particular political community. The Charter of Democracy is a remarkable document, bringing together two Pakistani political figures between whom no love has ever been lost. When Bhutto and Sharif agreed to the Charter — a moment that most U.S. observers ignored altogether — a number of Pakistani citizens spoke about the declaration in strikingly grand terms, with some even comparing it to preconstitutional documents such as the Declaration of Independence, the Lahore Declaration, and the Magna Carta. Unfortunately, the current efforts by the Bush administration to broker a deal between Musharraf and Bhutto at the expense of Sharif and other opposition leaders might well be undermining the viability of the Charter as a foundation and starting point for a collaborative effort to restore democracy.

While on the subject of Pakistan, let me also quickly plug the terrific work of my former colleagues at The NewsHour with Jim Lehrer, who have invested significant resources to do some serious, in-depth reporting in Pakistan this month. Every day this week, the show featured extended stories filed from Pakistan by Margaret Warner, who spent the last two weeks along with producer Simon Marks in Lahore, Islamabad, and Karachi. Margaret also conducted a couple of extended interviews with Bhutto and Sharif before arriving in Pakistan.

Their coverage is not entirely beyond critique — in particular, I think that they, too, could have contextualized their political analysis by going beyond the conventional narrative about the relationships among Sharif, Bhutto, and the Pakistan army a bit more than they have. Moreover, it also would have been particularly appropriate for the NewsHour, as a U.S. news organization, to probe a bit more deeply the active role that the Bush administration seems to be playing in bolstering Musharraf’s regime and seeking to influence the political dynamic among Musharraf, Bhutto, and Sharif. (As an example of both gaps in the coverage, Monday’s story contrasted Pakistan’s economic growth under Musharraf with the “instability” that prevailed under Bhutto and Sharif, but without noting the potential role in that recent growth played by massive, post-2001 inflows in U.S. aid and the lifting of sanctions that had been in place throughout most of the 1990s.) By not doing so, the stories at times make developments in Pakistan sound a bit too much like events taking place in a vacuum “over there,” unaffected by anything that the United States is doing. In fact, as Mohsin Hamid — whose excellent novel, The Reluctant Fundamentalist, was just shortlisted for the Booker Prize — wrote over the summer, political developments and attitudes in Pakistan have long been influenced by the United States’s engagement with the region. Hamid goes so far as to say that to the extent that anti-Americanism may be ascendant in Pakistan today, it has been fueled — at least in part — by the “accreted residue of many years of U.S. foreign policies.” [link]

Still, the NewsHour’s nuanced reporting in this series has been quite good — well beyond the standards of most television news outlets in the United States, who don’t seem even to phone it in any more when it comes to meaningful international coverage, and excellent even when evaluated against the NewsHour’s own high standards. All of the stories are available on this page, and a series of podcasts produced in connection with their coverage is available here.

(Posted at Dorf on Law)

On Tuesday, the BBC Asian Network’s Sonia Deol conducted a remarkable interview with Leo Varadkar, an opposition member of the Irish parliament, on the recent decision by the Garda Síochána, the Irish national police, to ban a Sikh trainee from wearing his turban while on duty [audio available here until next week; fast forward approx 2 hrs for the interview]. Ireland, which for a long time had been a country of tremendous emigration, has experienced remarkable changes in its migration patterns in recent years, especially as economic growth has created a significant demand for migrant labor. In 1996, Ireland became a country of net immigration for the first time, the last European Union member state to do so. Perhaps unsurprisingly, the road has not been without its bumps — as in other countries, including the United States, increased immigration has led to both anxiety and confusion among some native-born Irish citizens over the pace and extent of change.

Nevertheless, faced with these dramatic demographic shifts and a perceived need to increase the size and diversity of the force, Irish police officials have moved proactively in recent years to broaden their recruitment efforts — even to the point of amending the service’s eligibility criteria to permit non-Irish citizens to join the force. In the context of these recruitment efforts, the turban ban seems somewhat surprising. Irish officials don’t appear to make any operational claim that wearing turbans would hinder officers’ ability to perform their duties. Rather, they have defended the decision by stating that the Garda Síochána “historically [has] been seen as providing an impartial police service, policing all sections of society equally,” and that “accommodating variations to our standard uniform and dress, including those with religious symbolism, may well affect that traditional stance and give an image of an Garda Siochana which . . . the public would not want.” [link] As Varadkar put it in his interview:

VARADKAR: [At] the foundation of the Irish police force, 80 years ago, when Ireland . . . was born out of a sectarian conflict between Catholics and Protestants, a decision was made at that time to require anyone who was going to be a police officer or a member of the army to leave their religion and political affiliations at home . . . .

Perhaps this isn’t an entirely unreasonable starting point for a public conversation about the issue, assuming that the commitment to secularism is sincere and not selective. However, as Deol pointed out, there probably weren’t more than a handful of Sikhs, at the very most, in Ireland at all 80 years ago, so it also seems perfectly reasonable to revisit the issue in light of the changing demographics that contemporary Irish society has encouraged. And of course, the impact of this rule on Sikhs is disproportionately severe. If Sikhs were prohibited from wearing turbans while on duty, it would not simply require them to “leave their religion at home,” but rather would force many Sikhs in effect to abandon altogether a central tenet of their faith if they wished to serve in the police, a fact that Varadkar seemed unable to acknowledge openly and directly:

DEOL: How do you get Sikhs into the Irish police force if you’re asking them to remove their turbans?

VARADKAR: The same way you get Catholics, Christians, Jews, and Muslims to do so, by asking them, when they go to work, to leave their religion at home. . . . There’s space for your faith, in your private time, but when you’re their to be a police officer, you’re expected to wear a uniform and follow a set of rules . . . . This isn’t an anti-Sikh thing, there’s no ban on the turban as such, it’s just that there’s a uniform, and there’s no reason to change it.

From there, Deol’s interview with Varadkar only became more revealing. Varadakar proceeded to invoke the slippery slope:

VARADKAR: [I]f we were to let people wear turbans, would we then have to do the same thing with hajeebs or other religious clothing? We don’t particularly want to go down that route.

DEOL: I think the word is “hijabs,” but don’t worry about it. . . .

And as it turns out, even multiculturalism “in the home” isn’t completely safe on Varadkar’s view of the world:

DEOL: What difference would it make — you have Sikh officers wearing turbans in England and Wales, and it doesn’t affect how they do their job, so what is the logic in it in Ireland now, today? How would it affect a police officer doing his job, which has got to be important as well? . . . .

VARADKAR: . . . They may not be seen as . . . an ordinary agent of the state. . . . That would be a risk. But, you know, I think that in England, maybe you’ve got a different model, . . . very much a kind of multicultural model, where you have people, even second and third generation, who are still living in England as if they were living in the country their grandparents came from. In Ireland, we’re going for a very different model of immigration and a very different model of society, where already 10 or 12 percent of our population are immigrants or come from immigrant backgrounds, similar to Britain, but . . . we’ve decided not to go down the British route.

DEOL: What do you mean by that?

VARADKAR: Well, for example, in Britain, it’s not unusual for people who may be second or third generation immigrants and still at home speak the language of their grandparents, or to be schooled separately, or really not to be properly and fully integrated into British or English society. . . . We’re doing something very different in Ireland. We’re following what we call the Republican model, which perhaps is similar to the United States, where we have a “melting pot” really. So when immigrant communities come to Ireland we want them to mix in, and mix in fully — and to adapt their cultural traditions to the native culture. . . .

Essentially what we’ve seen is [that] the model that has happened in Britain in particular [has been] an unsuccessful model of immigration, where people live in separate communities and separate spheres and have separate aspirations, and we don’t want that. We want to have one nation, and we want to stay as one nation. . . . That doesn’t mean that you have to convert religions by any means, but it does mean that where you have a secular police force, like we do, that you’re prepared to accept that.

Maybe Varadkar is afraid that if the Irish allow second and third generation Sikhs to speak with their grandparents at home in Hindi or Punjabi, and then let them wear turbans on duty as police officers, it only will be a matter of time before some Irish police officer will approach him and shout, “Tumhe pulis ne charon taraf se gher liya hi, Varadkar! Ab tum apne aap ko pulis ke hawale kardo! Bhaag ne ki koshish mat karna!” Before leading a public prayer and a procession to the nearest gurdwara at taxpayer expense.

Varadkar’s characterization of British multiculturalism seems a distortion; his understanding of the United States is certainly off the mark. Ireland is a latecomer to the debate over Sikhs wearing turbans in the police and military, which is hardly surprising since Sikhs still number less than 1,500 individuals in a total Irish population of approximately 4 million. But several countries in addition to India and Pakistan — including the United States, Britain, Canada, Singapore, and Malaysia — have already confronted the issue of accommodating Sikhs’ turbans in their police uniforms and, in varying degrees, have permitted turbans to be worn on duty without any operational difficulties. For example, in Canada, the Mounties changed their rules to accommodate Sikhs in 1990. Here in New York, the NYPD changed its practices in 2004, following a lawsuit by a Sikh officer that garnered amicus support from then-Attorney General Eliot Spitzer.

It seems ironic that resistance to making such modest accommodations for Sikhs’ religious practices would be happening in Ireland, given the intense hostility and discrimination that large numbers of Irish migrants historically experienced in the United States and Britain. The 19th century American experience with nativism against Irish Catholics is well-known. (Notably, an important aspect of the integration process for 19th century Irish immigrants involved their employment in urban police forces.) And it was not anywhere near that long ago that signs could be found in British establishments reading “no dogs, no blacks, no Irish.”

Oh, and did I neglect to mention this? Leo Varadkar — whose political party appears to agree that the Garda Síochána “must reflect the diversity of modern Ireland” and recruit individuals from “communities that are currently poorly represented or lack visibility within the Gardaí,” such as immigrants — is of Indian descent on his father’s side.

(Posted at Dorf on Law)

In 1997, to mark the fiftieth anniversary of the independence of India and Pakistan, the House of Representatives passed a bipartisan resolution “congratulat[ing] the people of India and Pakistan on the occasion” and “look[ing] forward to broadening and deepening United States cooperation with Pakistan and India in the years ahead for the benefit of the people of all three countries.” Undoubtedly not the most consequential legislative act taken in the 105th Congress, although let’s not forget that the 105th was the “Monica Congress,” whose “dismal legislative record,” according to congressional scholar Thomas Mann, “will barely register when its history is written.” So this resolution might actually be up there as one of its highlights.

Regardless, symbolism and good will gestures have their place, and the 1997 resolution was a laudable one. So I was curious to see what the current Congress had to offer ten years later, on the occasion of the sixtieth anniversary of Indian and Pakistani independence. The differences are at least mildly noteworthy. The only current resolution that I could find (which apparently has not been adopted) was introduced two weeks ago by House members Jim McDermott and Joe Wilson. The resolution, which McDermott and Wilson apparently introduced at the behest of the U.S. India Political Action Committee, a group which (I think) did not even exist in 1997, “applauds the Indian-American community” for its role in promoting bilateral relations between India and the United States, “extends best wishes to the people of India as they celebrate the 60th anniversary of India’s Independence,” and — interestingly, for a resolution of this sort — “recognizes India as a long-term strategic partner of the United States.” Unlike the 1997 resolution, this resolution makes no reference to Pakistan or Pakistani Americans at all.

One certainly should be careful not to read too much into something so insignificant. But this resolution seems just a tad bit petty in its exclusive focus on India. Whatever we might understandably expect from a group like USINPAC, which self-consciously advocates in favor of stronger “U.S.-India bilateral relations in defense, trade, and business,” I do expect more from members of Congress. Especially at a moment in which the Bush administration has stumbled in its policies toward Pakistan, losing Pakistani hearts and minds left and right by lending unconditional support to General Musharraf for so long — and at a moment in which none of the major presidential candidates has yet offered a compelling alternative approach in support of Pakistani democracy — it is unfortunate that members of Congress could not have approached even this small, symbolic gesture with more creativity and thought than this.

* * *

So it is left to the rest of us, rather than lawmakers and lobbyists, to try to make modest symbolism at least somewhat more meaningful. As Ramachandra Guha reminds us in his magisterial new book, India After Gandhi, not everyone in the subcontinent found cause for celebration at the moment of independence, which came with the largest mass migration of people in history and left hundreds of thousands dead in the wake of Partition. As Guha notes, in Pakistan poet Faiz Ahmed Faiz wrote that

This is not that long-looked for break of day
Not that clear dawn in quest of which those comrades
Set out, believing that in heaven’s wide void
Somewhere must be the stars’ last halting-place,
Somewhere the verge of night’s slow-washing tide,
Somewhere the anchorage for the ship of heartache.

In India, Gandhi avoided the independence celebrations altogether, lamenting the violence of Partition and questioning whether anyone should be celebrating “in the midst of this devastation.”

However, this evening, in New York, some Indians and Pakistanis will lay claim not only to the notion that the independence of India and Pakistan can indeed be celebrated, while simultaneously recognizing cause for mourning and reflection, but also to the idea that the moment can be a shared one that Indians and Pakistanis can celebrate together. While Gandhi observed the moment of independence with a twenty-four hour fast, the organizers of “Flavors Beyond Borders” have creatively chosen instead to embrace food, treating it

as a medium to spread the message of peace, brotherhood and harmony among the people of the two nations. People from across the border will feast on a hearty meal specially prepared by renowned chefs of the two nations and enjoy the musical performances by acclaimed singers.

As Gandhi famously said, “we must be the change we wish to see in the world,” even when in seemingly insignificant ways.

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On July 4th, Mike commended to Dorf on Law readers the Declaration of Independence. In the same spirit, today I commend to all of you the speeches on the occasion of independence by both Nehru:

Long years ago we made a tryst with destiny, and now the time comes when we shall redeem our pledge, not wholly or in full measure, but very substantially. . . . It is fitting that at this solemn moment we take the pledge of dedication to the service of India and her people and to the still larger cause of humanity. . . . That future is not one of ease or resting but of incessant striving so that we may fulfil the pledges we have so often taken and the one we shall take today. The service of India means the service of the millions who suffer. It means the ending of poverty and ignorance and disease and inequality of opportunity. The ambition of the greatest man of our generation has been to wipe every tear from every eye. That may be beyond us, but as long as there are tears and suffering, so long our work will not be over. [link to full text]

and Jinnah:

No power can hold another nation, and specially a nation of 400 million souls in subjection; nobody could have conquered you, and even if it had happened, nobody could have continued its hold on you for any length of time but for this. Therefore, we must learn a lesson from this. You are free; you are free to go to your temples. You are free to go to your mosques or to any other places of worship in this State of Pakistan. You may belong to any region or caste or creed –that has nothing to do with the business of the State. . . . We are starting with this fundamental principle that we are all citizens and equal citizens of one State. . . . Now, I think we should keep that in front of us as our ideal and you will find that in course of time Hindus would cease to be Hindus and Muslims would cease to be Muslims, not in the religious sense, because that is the personal faith of each individual but in the political sense as citizens of the state. [link to full text]

(Posted at Dorf on Law)

A few days ago, Mike posed the following question regarding Pakistan:

Is it possible to support the pro-democracy forces without risking the replacement of an autocratic but friendly regime with a fanatical hostile one?

My own initial reaction was that intense fear of that prospect, which Mike described as “terrifying,” might often cause Americans to overestimate the actual risk. (Yes, John Edwards, I’m talking to you.) Now, over at Chapati Mystery, our colleague Sepoy goes a step further, arguing not simply that it is possible to support the pro-democracy forces without that feared outcome materializing, but that doing so in fact offers the best hope of avoiding it. His essay offers some useful background on the current standoff in Islamabad at the Lal Masjid (and in particular, its roots in the Islamization policies implemented during the 1980s by the last military dictator in Pakistan supported by the United States, General Zia ul Haq). The full post is well worth the read, but here’s the punch line:

The strengthening of miltant forces in Pakistan – and their inward gaze – has not come from any radicalization of Pakistani society but from the incomplete operation of US forces in Afghanistan. The war in Iraq drained away any plan for a viable and functioning Afghanistan. The defeated troops carried their tribal allegiances back across the border into the Northern and Western regions of Pakistan – and turned their attention onto Pakistani state. Musharraf, busy consolidating the military’s dominion had no viable way of combating these tribes – he has no legitimacy. I could be writing an alternative version of this recent past, if democratic tendencies had actually been allowed to develop in Pakistan since 2001. You may call it ‘paradoxical’ but the only solution to de-Islamization of Pakistan is democracy – not the support of dictatorships.

* * *

While many western observers praise Musharraf’s brave decision to side with the United States, the truth is that it was a no-brainer for him. The majority of Pakistan’s population has long maintained a healthy distaste for the involvement of religious leaders into statecraft – taking perhaps as axiomatic Bulleh Shah’s old verse: Mulla tay mashaalchi dohaan ikko chiz / Loukan karday chananan, aap anhairae vich [The Cleric and the Light Bearer are both the same / Trying to illuminate others, but in darkness themselves]. The outpouring of support for the Chief Justice is just one indication that the country is hungry for relief – note, please note, that Chaudhry Iftikhar is not some bearded mullah with any agenda for Shari’ah implementation in Pakistan. And yet, that old canard is forever being bandied about that if given democracy, the insane mullahs will control Pakistan. The choice has never been between Musharraf and the Mullah or the Mosque and the Ballot. The truth is that there never has been any choice. And the Pakistani public demand a choice. And they can be trusted to make the right decision just as much as any other citizen in any other democracy in any nation of this world [cf. 2000 and 2004, United States of America.] [link]

Pakistani military analyst Dr. Ayesha Siddiqa, author of the recent book “Military, Inc.,” offers a related perspective here.

(Oh, and that photo at the top of the post? It’s not from yet another stop on the Chaudhry yatra, but rather from a 100,000 person rally in Karachi against the Lal Masjid clerics back in April.)