Anil Kalhan

(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]