One year ago this month, the Obama administration announced ambitious plans to overhaul the immigration detention system, based on a comprehensive review conducted for Immigration and Customs Enforcement (ICE) officials by detention and corrections expert Dora Schriro. How has the administration fared in implementing these reforms?

First, some background, drawing from my recent piece in the Columbia Law Review Sidebar. Since the mid-1990s, the number of individuals in immigration detention has skyrocketed, fueled by enforcement policies that subject ever-larger categories of noncitizens to removal charges and custody – most notably individuals alleged to be removable on many criminal grounds, which now include a sweeping array of offenses, both serious and minor. Many of these individuals have been deemed ineligible for the individualized bond hearings to which individuals ordinarily are entitled, and have therefore been categorically detained without regard to whether they present any flight risk or danger. Immigration officials now spend over $1.7 billion each year to run the “largest detention system in the country,” holding nearly 400,000 individuals per year in a sprawling network of hundreds of federal, state, local, and private facilities nationwide.

With the onset of this vast system of mass immigration detention, longstanding detention-related problems have not simply persisted, but have widely proliferated. Literally dozens of reports within the last three years alone by advocates and government agencies have documented serious and widespread detention-related concerns, including overly restrictive and severe forms of custody, abusive and inadequate detention conditions, lack of access to counsel and family members, lack of adequate medical and mental health care services, sexual harassment and abuse, frequent and large-scale transfers of detainees between facilities, and prolonged and indefinite detention.

In her report, Schriro confirmed important aspects of this picture. She emphasized that although immigration detention is a civil form of custody, not criminal punishment, the facilities, personnel, and standards used to hold immigration detainees all inappropriately draw from criminal justice models, causing most immigration detainees to be held – systematically and unnecessarily – under overly severe and restrictive circumstances that are inappropriate to their status as civil detainees. In response to Schriro’s report, the Obama administration pledged reforms intended to overhaul and reconstruct this quasi-punitive detention regime – which might be termed a system of “immcarceration” – into what one official characterized as a “truly civil detention system.”

So one year later, how’s that hopey changey, “truly civil” stuff working out for ya?

Well, as immigrants’ rights advocates acknowledge, the Obama administration can point to a few significant changes in policies and practices, including the creation of an online detainee locator system designed to prevent individuals from “disappearing” in the detention system altogether and the restoration of an earlier policy encouraging parole and release from detention of arriving asylum-seekers who present neither a flight risk nor any security threat. Officials have also taken initial steps to expand “alternatives to detention” and to detain some individuals in less restrictive settings, based on more refined and particularized determinations of the risks presented by individuals subject to immigration custody.

Nevertheless, despite an apparently sincere commitment by senior officials to make detention conditions more humane, implementation of these reform initiatives has proceeded rather sluggishly. Conditions of confinement are not the only factor contributing to detention’s excessiveness, and at least so far the administration’s efforts leave intact a range of other practices that contribute to the excessive and quasi-punitive nature of detention for many noncitizens. Moreover, while one certainly shouldn’t expect transformational change to happen overnight, as advocates have documented large numbers of noncitizens continue to be detained – often for prolonged periods of time – under abusive and improperly punitive conditions:

Immigrant advocates nationwide continue to report widespread due process and human rights violations, including the overreliance on incarceration, mistreatment by guards, denial of access to legal service providers, inadequate medical care, misuse of solitary confinement, and discrimination against sexual minorities. These violations demonstrate that the commitment to reform made by ICE leadership has yet to have any substantive impact on the ground. Further, the actual or perceived fear of retaliation expressed by detained immigrants and advocates alike during the fact-finding stage of this report reiterate the urgent need for ICE leadership to strongly reinforce its detention reform policies among agents, personnel, and private contractors working in the field. . . .

Oversight, transparency and accountability are critical to achieving reform, and yet these are the weakest features of the reform process thus far. Over the past year ICE appointed regional detention managers and created a Detention Monitoring Council at ICE headquarters. However, despite these changes, there is little evidence that ICE leadership’s intention to improve oversight practices and precipitate a cultural shift within the agency has been meaningfully achieved . . . . [link]

There’s an even more fundamental dilemma, however, standing in the way of the Obama administration’s detention reform aspirations. While the administration has pledged to make the circumstances of detention civil and non-punitive, it simultaneously has demonstrated a clear commitment to expanding its predecessors’ aggressive, quasi-punitive interior immigration enforcement policies more generally – policies which reinforce a broader convergence between immigration and criminality in law and public discourse. ICE officials have long made clear that notwithstanding their proposed detention reforms, mass immigration detention will continue “on a grand scale.” And sure enough, just last week Homeland Security Secretary Janet Napolitano proudly announced that the Obama administration had deported more individuals than any other administration in U.S. history – facilitated most notably by aggressively expanding efforts, such as the so-called “Secure Communities” program, to enlist state and local law enforcement in the large-scale identification of potentially deportable non-citizens. Even though the majority (and fastest growing group) of individuals detained and deported through these expanded enforcement initiatives – as Schriro herself noted in her report – have either no prior convictions or relatively minor criminal histories, officials have gone to great lengths to emphasize that many of these individuals have been deported on account of prior criminal convictions.

In this context, the administration’s detention reform initiatives are in deep tension with its overall approach to immigration control and interior enforcement. With a rapidly increasing number of potential detainees identified through programs such as Secure Communities, the government will face mounting pressures not only to hold even more noncitizens in its custody, but to do so at minimal cost. And by reinforcing the convergence between immigration and criminality in public discourse, the administration has made itself increasingly vulnerable to attacks – such as the scathing “vote of no confidence” recently leveled by the ICE detention officers’ union – over any initiatives that would devote time, energy, and not least money to making detention more humane and less punitive and severe.

One overall result has been a pattern of reactions that echo the “confusing and deeply contradictory” criticisms that the Obama administration faces in other policy areas: “[Obama] is a liberal zealot, in the view of the right; a weak accommodationist, in the view of the left.” The administration finds itself even further mired in that purgatory by its unwillingness or inability to move forward on comprehensive immigration reform – an initiative which could, depending on how it were crafted, help begin to roll back the decades-long convergence between immigration and crime control in law, policy, and public discourse. While congressional dysfunction and other legislative priorities obviously have played major roles in the inability to enact major immigration reform legislation, the Obama administration even appears unwilling to use its considerable administrative powers to move immigration policy in its preferred direction.

One could, with Edward Alden, conclude that the combination of detention conditions reform, on the one hand, and aggressive interior enforcement, on the other, show that “it’s possible to be tough without being unfair and inhumane.” However, absent a broader reconsideration of immigration control policies that are premised upon convergence with criminal enforcement – and some efforts to move forward on more fundamental immigration reform – the inherent tensions between those two sets of initiatives make it likely that the administration’s ever-increasing “toughness” will undermine any meaningful efforts to show “fairness” and “humanity” when it comes to immigration detention.

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.

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]

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.

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

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.

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.”

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.

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]

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.

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?

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]

(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.”

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.)

**

(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?

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.

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.

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.

* * *

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]

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.)

Vice President Cheney has been all over the news this week. First, Cheney made headlines for his claim that he need not comply with rules requiring all executive branch entities to report to an oversight office in the National Archives on how they handle classified information because the Office of the Vice President is not part of the “executive branch.” Second, the Washington Post has been running a series of revealing stories this week on the dominant role that Cheney has played in the Bush administration across a range of issues.

For more on all of that, have a look at what our colleagues Jack Balkin and Marty Lederman have to say over at Balkinization. Here, I simply wish to draw attention, in the context of this week’s reports, to some of last week’s Cheney-related news, which I suspect some folks may have missed — namely, the apparently dominant role that Cheney’s office also has been playing in the Bush administration’s continued, seemingly unconditional support for General Pervez Musharraf in the current political crisis in Pakistan (which is not discussed in the Post series). First, from a column by Pakistani journalist Ahmed Rashid in the Post:

[Recent years have seen] a dramatic drop-off in U.S. expertise on Pakistan. Retired American officials say that, for the first time in U.S. history, nobody with serious Pakistan experience is working in the South Asia bureau of the State Department, on State’s policy planning staff, on the National Security Council staff or even in Vice President Cheney’s office. . . . “They know nothing of Pakistan,” a former senior U.S. diplomat said.

Current and past U.S. officials tell me that Pakistan policy is essentially being run from Cheney’s office. The vice president, they say, is close to Musharraf and refuses to brook any U.S. criticism of him. This all fits; in recent months, I’m told, Pakistani opposition politicians visiting Washington have been ushered in to meet Cheney’s aides, rather than taken to the State Department.

No one in Foggy Bottom seems willing to question Cheney’s decisions. Boucher, for one, has largely limited his remarks on the crisis to expressions of support for Musharraf. . . . Meanwhile, Boucher’s boss, Secretary of State Condoleezza Rice, demands democracy and media freedom in Venezuela but apparently deems such niceties irrelevant to Pakistan. [link]

Second, from an interview that longtime Asia expert Selig Harrison gave to the Daily Times:

Harrison said that Washington’s Pakistan policy is run by Vice President Dick Cheney’s office, adding that there is a group in there, which is pushing for a showdown with Iran, including military action, over its nuclear programme before Bush’s term expires.

The American Vice President attaches great importance to Musharraf and it would appear that an understanding has been reached with him on Iran. The Cheney lobby is keen on destabilising Iran, said Harrison, who recently returned form a week-long trip to Iran.

He further claimed that Cheney’s last visit to Pakistan was Iran-related, during which Cheney wanted to find out if there was more information to be gleaned from Dr AQ Khan on Iran’s nuclear programme and what assistance his network had rendered to it. [link]

Meanwhile, the crowds continue to throng around “suspended” Chief Justice Iftikhar Chaudhry as he travels across Pakistan to speak to gatherings of Pakistani lawyers. This past weekend’s stop was Multan, where a 30-plus hour yatra from Lahore culminated in a speech before thousands of lawyers and Musharraf opponents. “Your motto is supremacy and implementation of law and independence of the judiciary,” he told the lawyers, “[and] I am confident your movement will succeed.” [link] All of this comes amidst new allegations that Musharraf’s intelligence agencies are bugging judges’ telephones.

Hai rabba, between Cheney and Musharraf, who’s giving advice to whom? Perhaps the same people are giving legal advice to both of them. If it’s constitutionally permissible for Musharraf to manipulate electoral rules so he can continue to serve as both President and Chief of Army Staff, as he has hinted that he might, then maybe (among other things) it’s also possible that Cheney’s Office of the Vice President is a non-branch of government after all.

As our colleague Sepoy, over at Chapati Mystery, might say, tick tock….

Our colleague, Diane Marie Amann, draws our attention to, and invites our nominations for, an interesting contest that she and her co-bloggers at IntLawGrrls are conducting to name the “Seven Legal Wonders of the World.” Here’s Diane’s description of the contest and its inspiration:

A contest launched 6 years ago by the entrepreneurial New7Wonders Foundation has driven more than 4 million people to cast 28 million votes for humankind’s 7 most wondrous feats of engineering or architecture (of the traditional 7 only 1, the Pyramids, is still in existence). You’ve got just 60 days left to choose among the 21 finalists, which range from Athens’ Acropolis temple to Bavaria’s Neuschwanstein castle, from the statue of Jesus in Rio to the Statute of Liberty in New York. If the spirit moves you, vote here.

Or, help IntLawGrrls put together a different list — of the World’s 7 Legal Wonders. Post a comment or e-mail us at intlawgrrls@gmail.com with your nominee. Names of persons, things, events, ideas all are fair game. And your nominee may be a “wonder” in the negative as well as the positive sense of the word. [link]

So far, the nominees include: (1) the 13th Amendment to the U.S. Constitution, (2) the Constitution of the Republic of South Africa, (3) the Law Merchant, and (4) the Edicts of Aśoka.

Just as interesting as any particular candidate for “Legal Wonder” may be what the nominations say about the cultures from which these Legal Wonders have emerged and our own. Mary Rebecca Bynum has written that when she teaches her undergraduate course on “The Seven Wonders of the Ancient World,” her purpose is not simply to teach students about the Seven Wonders themselves, but to explore “how members of one culture view other cultures, and what use they make of other cultures in their own world.” This contest, too, may be as much a window into our own values, ideals, and culture as it is into the cultures that produced the particular “Legal Wonders” being nominated.

So who or what do we nominate here at Dorf on Law? There are of course many worthy candidates, but I nominate Dr. B.R. Ambedkar, a Dalit (or so-called “untouchable”) leader who at times clashed with Gandhi and other Congress leaders during the Indian independence movement and later became one of the principal architects of the Indian Constitution, which among many other notable things abolished “untouchability.” Over fifty years after his death, Ambedkar remains a deeply influential figure in contemporary India, although to many people also a controversial one. A crude indicator of progress under Ambedkar’s Constitution may be seen in the sweeping recent victory in the state of Uttar Pradesh by the Bahujan Samajwadi Party, a party created principally to represent and advocate on behalf of Dalits. Not only did the BSP surprise observers by winning an absolute majority of seats in the state — returning Mayawati, the first Dalit woman to lead any of India’s states, to power as the state’s Chief Minister — but it apparently did so with significant support from a “rainbow coalition” that included significant numbers of upper caste Hindus. On the other hand, for a sense of how far India has yet to go to fully realize its formal abolition of untouchability, recall my post on the status of Dalits from several months ago.

Feel free to post your nominations for the “Legal Wonders” contest, along with your reasons, in the comments to this post (or, co-bloggers, perhaps in blog posts of your own). Or send an email to intlawgrrls@gmail.com. If it seems easier to identify “legal blunders” than “legal wonders,” that need not hold you back, for if a blunder is bad enough — if it’s a downright fiasco — perhaps it inspires wonder on that basis alone. So whether fabulous or fiasco, fire away with your nominations.

UPDATE (6/7/2007): An updated and more complete discussion of the issues in this post may be found in my column for AsiaMedia on Wednesday.

**

A couple of weeks ago, in response to a New York Times editorial critical of continued U.S. support for General Pervez Musharraf, Pakistan’s U.N. ambassador, Munir Akram, took a break from his duties as diplomat to perform a quick stint as media critic (thanks, SAJAforum). In a letter to the editor printed last week, Ambassador Akram complained that the Times‘s “repeated references to our president as a military dictator are offensive. President Pervez Musharraf was elected in accordance with Pakistan’s Constitution by our national and provincial parliaments. His re-election will be similarly democratic.” [link]

It will be recalled that Musharraf was swept into office with 98 percent of the official tally in an April 2002 referendum that presented voters with no opponents and the following ballot question:

Do you want to elect President General Pervez Musharraf as President of Pakistan for next five years for the survival of local government system, restoration of democracy, continuity and stability of reforms, eradication of extremism and sectarianism and for the accomplishment of Quaid-i-Azam‘s concept.

At the time, leading Pakistani lawyers and human rights advocates concluded that the polling was not free and fair and even questioned the very legitimacy of the referendum itself under the Pakistan Constitution. [link] Just last week, soon after Ambassador Akram sent his letter to the Times, a former Pakistani high court judge made the same arguments to the Supreme Court panel hearing the allegations against suspended Chief Justice Iftikhar Chaudhry:

A former judge claimed yesterday that President Pervez Musharraf had no authority to suspend Chief Justice Iftikhar Chaudhry, arguing that the 2002 referendum that kept the military ruler in power was unconstitutional.

* * *

“People were made into fools,” [Fakhruddin G.] Ibrahim said of the referendum, adding that the vote’s lack of legal authority leaves Musharraf “not competent”.

Ibrahim called for an end to military rule, saying Musharraf had received a stamp of approval from a subservient parliament. Musharraf is expected to seek a new five-year presidential term later this year from the same parliament, but has yet to announce whether he will give up his position as army chief — the source of most of his power. [link]

Ibrahim might want to check his inbox to see if there is any fan mail from Ambassador Akram. But if all he and the Times get from Pakistani officials is correspondence, then maybe they should consider themselves fortunate, for just last week:

Three Pakistani journalists working for foreign news organisations in Karachi found bullets placed in their cars in what a local media body described on Wednesday as an attempt to intimidate the press into silence. “It is very threatening. This is a serious issue. It is an attempt to gag the press, but we will not compromise on our objectivity,” Mazhar Abbas, secretary-general of the Pakistan Federal Union of Journalists, told Reuters. [link]

Over the weekend, the government and its allies cracked down on the electronic media, taking three independent TV news channels off the air for several hours. [link, link] Live coverage of Chaudhry’s speech before a rally in Abbotabad (apparently the largest pro-Chaudhry rally to date) was blocked, and one of the channels, Geo TV, was apparently blocked on account of a broadcast critical of Musharraf. All of this came after weeks of media intimidation — countless warnings by senior government officials that the media must “use its press freedom with responsibility” and “avoid inappropriate reporting,” a number of police raids on journalists’ offices, violent attacks targeting journalists during the last month’s violence in Karachi, and explicit threats last week by both government officials and the national cable operators association that media restrictions were likely on the horizon.

And then today, the other shoe dropped:

Under an emergency ordinance that takes effect[] immediately, Musharraf made a raft of amendments to regulations governing the electronic media, including private television channels that the general has accused of anti-government bias.

The ordinance says authorities can seal the premises of broadcasters or distributors breaking the law, and raises possible fines for violations from 1 million rupees ($16,665) to 10 million rupees ($166,650).

The Pakistan Media Regulatory Authority can also suspend the license of an offender. [link]

No word just yet on the circumstances ostensibly justifying the “emergency” measures. But not to be left out of the fun, Pakistan Prime Minister (and former Citibank executive/would-be ladies’ man) Shaukat Aziz chimed in as well, warning that the media should “refrain from maligning prestigious state institutions, particularly the armed forces. Those who talk against the armed forces are enemies of Pakistan.” [link] One cannot be entirely certain, but it’s possible that Aziz’s comments were directed not only at the electronic media, but also at Dr. Ayesha Siddiqa, whose new book “Military, Inc.” — launched on Thursday, banned by Friday — investigates the lucrative private business interests that feed the Pakistan Army’s power. [link]

Musharraf and his colleagues say that they are all for freedom of the press. In fact, just last month, Musharraf participated in the launch of a new English all-news TV channel by Dawn, a newspaper founded by Jinnah himself (and one that has been engaged in a bitter dispute with Musharraf’s government for several years). At that event, Musharraf took “full credit for the mushrooming of private television channels, saying that whatever freedom there was in the country it was only because of him. ‘I alone had insisted that we must give them freedom so that the media could hold everyone accountable,’ he said while recalling the early years in power when he had framed the media policy.” However, in that same speech Musharraf also warned, as he frequently has before, that the media must “demonstrate what he called a certain level of responsibility in the projection of Pakistan” in its coverage. [link]

Explicit media censorship was, of course, a key element of Indira Gandhi’s Emergency in India, as this Time Magazine article from July 1975 reminds us:

Strict censorship has prevented the once lively Indian press (some 830 daily newspapers) from printing anything other than official handouts about the crisis. Government proscriptions against “unauthorized, irresponsible or demoralizing news items” last week were extended from articles and editorials to cartoons, photos and even advertisements. This further muzzling of the press may have been in response to a few cases of surreptitious sniping at the government’s measures; in Kerala, for example, one paper ran a cartoon depicting Mrs. Gandhi dressed as Louis XIV with a caption reading “I am India.” The censors also closely monitored the dispatches of foreign newsmen. Last week the government summarily expelled Washington Post Correspondent Lewis M. Simons, who had stirred official ire by reporting that the army did not solidly back Mrs. Gandhi. [link]

The violations of press freedom in Musharraf’s Pakistan have not yet reached such an explicit and blatant point, and perhaps never will. Musharraf might well conclude that he can more effectively advance his domestic and international political objectives by relying on more subtle forms of interference with press freedom than total bans, explicit censorship, and the declaration of a complete state of emergency. Regardless, even short of the extremes reached in Indira Gandhi’s India, the situation is not particularly encouraging.

* *

Meanwhile, according to the State Department, “[t]he direction that President Musharraf set for Pakistan is a good one, and we are supporting that.” [link] And in the process, some moderate Pakistanis say that they “are coming to despise the USA.” Not that there are necessarily any simple answers here, but mull over that the next time someone tries to tell you that “they” hate “us” simply because “they hate our freedoms.”

This week, the Senate began debate over a massive immigration reform bill cobbled together by a bipartisan group of senators and the Bush administration, a compromise proposal that Arlen Specter has extravagantly dubbed the “grand bargain.” As rumored several weeks ago, the bill includes a set of initiatives (apparently included at the behest of the Bush administration) that would radically accelerate the Clinton-era trend of eroding the place of family unity as a foundational principle underlying U.S. immigration policy. The system contemplated by the grand bargainers would eliminate most of the existing family-based immigration preference categories (and all of the existing employment-based preference categories) in favor of a new “points”-based scheme that prioritizes highly-skilled, highly-educated, and English-speaking professionals; under the points scheme, family ties would carry negligible weight. Immigration by spouses and minor children of U.S. citizens and lawful permanent residents would remain unchanged, but the grand bargain would eliminate family-based immigration for adult children of U.S. citizens and permanent residents and siblings of U.S. citizens. The proposal would also cap immigration by parents of adult U.S. citizens, who currently can immigrate without numerical restriction.

The proposal seems to come straight from the playbook of immigration restrictionists, who sometimes purport to welcome nuclear family-based immigration, but dismiss extended family-based immigration as privileging “kinship ties” over “actually making the United States better off.” [link] Curtailing “extended” family-based immigration — which in this context means parents, adult children, and adult siblings, not more “distant” relatives — certainly would visit a real hardship upon many immigrants from societies in which the extended family is a basic social unit and caring for aging parents and other adult family members a basic social value. (Indeed, at least one international news report this week characterized the grand bargain as “challeng[ing] Asian family values.”) But one need not view this issue exclusively in cultural terms to be concerned by the grand bargain’s rather sudden move away from family unity, for opponents of extended family-based immigration also seem to underestimate its social and economic benefits to the United States at large. Studies indicate that family-based immigrants, perhaps aided by greater social capital, have the same earning potential over time as employment-based immigrants, play a leading role in the entrepreneurial sector, and provide economic, psychological, emotional, and cultural support that facilitates the integration of immigrants into U.S. society. Immigrant grandparents and other extended family members often also play a crucial role in assisting with child care, facilitating the workforce participation of many parents.

It is a bit odd to see a proposal to curtail family reunification — which was not even on the table at all in the immigration debate last year — as part of the opening bid in the debate before a Democratic Senate. It is one thing to see President Bush’s statement that “American citizens [should] understand that family values do not stop at the Rio Grande River” evaporate, since the Bush administration has always devoted more energy to asserting broad principles in the area of immigration reform than to tangibly implementing those principles in proposed legislation. (The revised rhetoric coming from the White House this week maintains, less majestically, that the grand bargain’s elimination of most family-based immigration categories “create[s] a new balance between family connections and our national interests and economic needs.” [link]) But it is quite another to see Senator Kennedy signing on to this proposal, which appears in a bill that on balance seems more restrictionist, in some ways, than the bill which passed the Republican-led Senate by a wide margin last year. Not only did Kennedy strongly assert his commitment to family reunification less than two months ago, he also played a crucial role in placing family reunification at the heart of U.S. immigration policy in the first place, when the Immigration Act of 1965 was enacted. One has to wonder what the strategy is here. Some senators have said they will seek to amend the family unity provisions on the Senate floor, but it remains to be seen how those floor votes will play out.

* *

The New York Times efficiently summarizes and critiques the 347-page bill’s main components (including its legalization and temporary guest worker provisions, and the “triggers” and “touchbacks” that might make it difficult for those provisions to take effect at all) in this short editorial. The American Immigration Lawyers Association adds its concerns about the grand bargain here, the Rights Working Group discusses due process concerns in the bill here, and SAALT executive director Deepa Iyer discusses implications for the South Asian American community here. And last but not least, Jon Stewart and Aasif Mandvi discuss the points scheme in the clip above.

**

(Posted at Dorf on Law)

It’s been an eventful week in Pakistan. A recap for folks who get most of their news from American media outlets may have missed it:

• In a speech on Saturday, President Pervez Musharraf once again accused “non-functional” Chief Justice Iftikhar Chaudhry’s supporters in the Pakistani legal community of “trying to give political colour to a judicial issue.” He warned “that they would not succeed in their designs,” and again defended his decision to suspend Chaudhry. [link]
• In response, tens of thousands of Chaudhry’s supporters and Musharraf’s opponents rallied in support of Chaudhry’s motorcade on Saturday and Sunday as it proceeded through towns along the Grand Trunk Road from Islamabad to Lahore — a four-hour trip that took Chaudhry’s motorcade approximately twenty-six. “Nations and states which are based on dictatorship instead of the supremacy of the constitution, the rule of law and protection of basic rights get destroyed,” Chaudhry warned in a speech to lawyers in Lahore. The government apparently blacked out news coverage of the demonstrations and arrested many activists in advance of Chaudhry’s yatra. [one, two, three]
• In response to the demonstrations, Musharraf’s Prime Minister Shaukat Aziz, a former Citibank executive in New York, warned that the government reserved the option under the Pakistan Constitution to declare a state of emergency. He also warned the media to “use its press freedom with responsibility” and “avoid inappropriate reporting.” [link]
• On Wednesday, the Supreme Court of Pakistan “strictly prohibited” any “discussions, comments or write ups which may interfere with the legal process, or ridicule, scandalize or malign the Court or any of its Judges/Members of the Supreme Judicial Council or touching the merits of cases pending both before the Supreme Judicial Council/Supreme Court” and warned that violators would be punished for contempt of court. [link] Meanwhile, that same day in Karachi, government officials sealed the law office of Munir Malik, President of the Pakistan Supreme Court Bar Association and one of the lawyers defending Chaudhry. Within hours, the Sindh High Court ordered Malik’s office unsealed, and early on Thursday morning, shots were fired into Malik’s home by unidentified gunmen. [link]

Leaving to one side the merits of the charges against Chaudhry, about which I have nothing to say, Musharraf’s repeated attempts to draw a line between politics and law in this case — and at that, to do so in the course of his own political speeches and press conferences — seem a bit naive at best. Indeed, the highly politicized manner in which Musharraf and Aziz initially handled the referral of the case back in March, as summarized in a preliminary report released on Tuesday by the International Bar Association, seems to have intertwined the case with politics from the start. And clearly, the case has touched a nerve implicating issues bigger than anything to do with Chaudhry himself. Given the Supreme Court’s gag order, the cabinet has now asked Musharraf and other government officials to stop talking about the case. [link]

Aziz’s talk of emergency seems more ominous, evoking not only earlier moments in Pakistani history but also the notorious Emergency declared in India during the 1970s. Facing growing political opposition and an unfavorable judicial decision that would have tossed her from office, Indira Gandhi instead tossed Indian democracy itself to one side, manipulating constitutional provisions authorizing the declaration of emergency to suspend fundamental rights, censor news coverage, detain tens of thousands of political opponents and others, and effectively rule by decree. Pakistan seems to be facing a similar moment. With elections required by the end of this year, Musharraf has been maneuvering for a way to remain President while retaining his post as Army Chief of Staff, which would appear to violate the Pakistan Constitution. (Indeed, Musharraf has already violated his own promise to give up either his post as Army Chief or his civilian post as President by December 2004.) A state of emergency could provide a convenient pretext for Musharraf to postpone elections and prolong his hold on power. At the same time, given the depth of political opposition that the Chaudhry affair has exposed, one has to cringe at the thought of what it might take for the Pakistan Army to meaningfully enforce any declaration of emergency.

So far, there seems little basis for even a pretextual declaration of emergency. But the Chaudhry Yatra proceeds this weekend to Karachi, where Chaudhry is scheduled to address the Sindh High Court Bar Association. Chadhury’s supporters have scheduled an anti-Musharraf demonstration, and in response the pro-Musharraf MQM has scheduled a counterdemonstration to take place at the same time nearby, which Musharraf opponents allege has been planned in a deliberate attempt to stir up violence. (Musharraf also has scheduled a political rally of his own to take place at the same time in Islamabad.) Karachi is understandably on edge in advance of the competing demonstrations, for which the state government is planning to deploy 15,000 police.

Will the unfolding events provide Musharraf with a convenient excuse to declare an emergency? And what are U.S. diplomats saying to Pakistani officials behind closed doors? In the words of the Faiz Ahmed Faiz ghazal that has been much quoted in connection with this week’s events, “hum dekhenge.”

According to the New York Times, U.S. officials are concerned about what the Times calls a “visa loophole“: the ability to enter the United States as a short-term, temporary visitor without a visa. The headline does not make clear precisely what the supposed “loophole” is. If the Times means to refer to the Visa Waiver Program as a whole, which authorizes visa-free entry of visitors from 27 countries that extend the same privilege to U.S. citizens, then that must be one of the biggest “loopholes” in human history, since approximately 13-15 million people — representing roughly half of all nonimmigrant admissions — enter the United States under the program every year. So surely the Times’ characterization rests on a more particularized, irregular, and unanticipated concern?

In recent months, the homeland security secretary, Michael Chertoff, has opened talks with the government here on how to curb the access of British citizens of Pakistani origin to the United States. . . . Among the options that have been put on the table [by U.S. officials], according to British officials, was the most onerous option to Britain, that of canceling the entire visa waiver program that allows all Britons entry to the United States without a visa. Another option, politically fraught as it is, would be to single out Britons of Pakistani origin, requiring them to make visa applications for the United States.

Oops. Maybe not all that particularized, since (according to the Times) approximately 800,000 UK citizens are of Pakistani descent. And not the least bit irregular, since the government has implemented the Visa Waiver Program pursuant to criteria established under a series of statutes dating from the mid-1980s. A wag of the finger to the Times, and a tip of the hat to Siddhartha Mitter — as he notes, to characterize as a “loophole” the ordinary application of U.S. immigration laws to UK citizens of Pakistani descent in precisely the same manner that they apply to any other UK citizen seems, “wittingly or not, an appeal to prejudice and an insult to intelligence.” It’s as much a “loophole” as my entitlement, as a U.S. citizen of South Asian descent, to get one of those kitschy new U.S. passports that Mike wrote about on Tuesday.

* * *

Let’s leave to one side debate over the Visa Waiver Program in general, which provides significant economic and fiscal benefits to the United States but also has raised security concerns. What should we make of the specific proposal to discriminate against Pakistani UK citizens? Despite the Chief Justice’s statement in a 2006 voting rights case that “it is a sordid business, this divvying of us up by race,” the Supreme Court might well uphold an official policy discriminating against Pakistani, South Asian, or Muslim UK citizens. Just as it relied upon and reaffirmed the Civil Rights Cases when striking down the Violence Against Women Act, the Court could rely upon and reaffirm the cases from the same era upholding Chinese exclusion, which never have been overruled; while more recent Supreme Court cases require some limited constitutional scrutiny over substantive admissions criteria, they probably don’t require strict scrutiny.

But it also doesn’t strike me as a “slam dunk” case, given the proposal’s rather questionable rationality. Indeed, the very fact that this discussion is taking place at all might be an illustration of Bernard Harcourt’s suggestion (which he also makes in his recent book) that profiling in defensive counterterrorism measures might, counterproductively, lead to substitution in the form of either recruitment from non-profiled groups or use of methods that may be more immune to such profiling. The first generation of post-2001 profiling-based initiatives by the United States largely targeted natives and citizens of predominantly Muslim countries. The possible shift now to a second generation of profiling-based initiatives, this time instead targeting citizens (presumably including both naturalized and native-born) of largely non-Muslim countries in the West, might be a response to precisely the sort of substitution that Harcourt discusses. Why shouldn’t we expect further substitution in response to this proposal as well? After all, UK citizens suspected of terrorism in recent years have not exclusively been Pakistani, but also have included individuals of Jamaican and East African descent. And there are 26 other countries in the Visa Waiver Program.

According to GAO, the biggest potential vulnerability in the Visa Waiver Program is the misuse of lost and stolen passports by individuals seeking to conceal their true identities or nationalities. Some visa waiver countries may not be monitoring and reporting lost or stolen passports as effectively as they should, and U.S. border officials may lack sufficient resources and capacity to detect the misuse of passports from visa waiver countries. But assuming these are the principal concerns here, it seems odd and misguided to respond by requiring Pakistani UK citizens alone to apply for visas. After all, holders of false, manipulated, or fraudulently-obtained British passports probably could manipulate their identities rather easily to indicate that they are of, say, Indian or Lebanese descent. Even if the profile were broadened to include all Muslim UK citizens, a determined would-be terrorist could similarly conceal their religious identity.

So a wag of the finger to Chertoff as well. Like most of the post-2001 initiatives that have adopted blanket, categorical rules that profile and discriminate against individuals perceived to be Muslim, this proposal strikes me as symbolic “security” on the cheap, a sign that perhaps the government does not understand all that well the phenomenon it seeks to prevent. In the short term, the proposal seems unlikely to provide more than a false sense of security and could visit real hardships upon many UK citizens of Pakistani descent, given how much red tape many Muslims face in the visa application process nowadays. (See here for a particularly cringeworthy story.) In the longer term, the proposal represents yet another discriminatory initiative with great potential to fuel the alienation and anger of Muslims throughout the world, by once again forcing them to endure the indignity of imputed responsibility for wrongdoing with which they have absolutely nothing to do.

On the heels of increasing discussion of whether its erstwhile (given his recent defeat in the first “money primary”) presidential frontrunner is sufficiently conservative to win the Republican nomination [one, two], the erstwhile party of family values is apparently about to unveil its latest proposal for comprehensive immigration reform. While details remain unclear, reports indicate that the proposal — which has White House support and whose Senate sponsors include at least two erstwhile opponents of comprehensive immigration reform, Senators John Cornyn of Texas and Jon Kyl of Arizona — would limit family reunification in at least two respects. First, while the proposal would provide undocumented immigrants with an opportunity for legalization, it apparently would bar them from bringing family members with them [link]. Second, while the bill would increase the number of employment-based visas to accommodate future flows of immigrant workers, these increases apparently would be offset in part by eliminating the existing family-based visa category that permits immigrants to sponsor their siblings and adult children [link].

Immigrants’ rights advocates and pro-immigration legislators have criticized the proposal:

“Family reunification has been an essential aspect of these policies,” Kennedy said last week. “Many of those who are brought in, in terms of families, have become actively involved. They open small stores, play a significant role in the economy. The families and the importance of family unity are extremely important.” [link]

“This set of principles is a nonstarter – they don’t work,” said [Asian American Justice Center] President and Executive Director Karen K. Narasaki. “They don’t address the underlying problems leading to undocumented immigration – and, in fact, the policies would actually exacerbate the problems. They offer only false promises to the undocumented already here. And they are very anti-family.” [link]

As these advocates suggest, the White House/GOP Senators’ proposal might legitimately be understood as a significant anti-family shift in the current reform debate. However, what might easily be lost in this discussion is the extent to which the proposal might also be understood as simply the continuation of a trend, for the immigration policies enacted in the last decade – especially the legislation signed into law by President Clinton in 1996 — already have devalued immigrant families to a significant extent. Ten years later, one doesn’t have to look very hard to find stories of families devastated by the vast expansion of deportation grounds to encompass minor crimes and the elimination of opportunities for many long-time residents to seek individualized, discretionary relief from deportation. (I’ll nevertheless help with that search by providing a couple: click “play” on the audio link above for the story of Aarti Shahani and her family, also downloadable here from Breakthrough, and see this link for the story of 82-year-old Gurdev Gill. Only two stories among many, many others.)

With the proliferation of such stories, one might think that one has heard every possible permutation. And yet, yesterday (thanks, Naina), a remarkable recent case caught my attention:

Samuel Jonathan Schultz was born in India and adopted at age 3 by a Utah woman. His adopted mother apparently failed to complete his application for US citizenship upon his arrival to the US.

As a teenager, Schultz got in trouble with the law on numerous occasions. At the age of 18, he was arrested for driving a stolen vehicle (he claims that his friend stole the car and that he was simply on his way to return it). A year later, he was convicted again for car theft. [link]

Schultz also “has a juvenile record of theft offenses and engaged in altercations as a teen with his stepfather that occasionally required police intervention.” [link] Apparently ineligible for discretionary relief on account of his criminal history, he has sought asylum on the ground that, as a Mormon, he might face persecution in India, and in an unpublished opinion the Tenth Circuit recently affirmed the denial of his asylum claim, also on account of on his criminal record. Let’s leave the merits of the asylum issue to one side for now — although I wouldn’t too quickly or categorically dismiss the notion that Christians might face persecution in India, either, at least in some circumstances. At the heart of this case is not Schultz’s asylum claim, but rather the question of what justifies either his deportation or the blanket denial of any opportunity to seek discretionary relief from deportation at all. Since Schultz is an adoptee, presumably all of his family ties are here in the United States. Indeed, Schultz’s criminal record itself is entirely “homegrown” in the United States, since he has had no meaningful ties to his country of origin since the age of three.

Schultz’s case is only a particularly extreme illustration of the harsh immigration consequences that countless others have faced since 1996. At one point, concerns over such extreme outcomes led a bipartisan group of legislators — including some of the very architects of the 1996 legislation themselves — to conclude that those laws had gone too far and should be scaled back. Such proposals have been notably absent in the post-2001 debates over immigration reform. However, Congressman José Serrano recently has proposed legislation in that spirit. Serrano’s bill, the Child Citizen Protection Act, would restore discretionary authority for immigration judges to waive deportation of parents of U.S. citizen children if the IJ concludes that deportation is “clearly against the best interests of the child.” Serrano’s proposal is a limited one. It wouldn’t help Schultz and many others facing overly punitive consequences of the 1996 laws. But the bill could provide a starting point for a rather different kind of public conversation than the one we’ve been having for the past several years about who we are deporting and why.

When he was still mayor here in New York, the erstwhile GOP frontrunner was a vocal advocate on behalf of immigrant communities in several respects. Now that he has presidential ambitions, and both a GOP base and Tom Tancredo to contend with, it will be interesting to see whether he will remain a strong advocate for immigrant families in the current reform debates or will instead “flip flop” and become merely another erstwhile pro-immigrant voice.

The crisis in Pakistan over General Pervez Musharraf’s “suspension” of the Chief Justice of Pakistan, Iftikhar Muhammad Chaudhry, has only deepened since Mike first posted about it earlier this week, but it continues to garner surprisingly little news coverage in the United States. Musharraf has still offered no details of the allegations against Chaudhry, but his suspension came one day after the now “non-functional” Chief Justice gave notice that he intended to investigate allegations of disappearances at the hands of Pakistani security forces, which have increased dramatically since 2001. (On the surge in disappearances, the Guardian has chilling details.)

The move to dismiss Chaudhry is hardly the first time in the postcolonial history of the subcontinent that judicial independence has been threatened. In each of Pakistan’s four periods of military rule, the coup leaders have moved with some success to legitimize their usurpation in the courts, which have elaborated what Tayyab Mahmud has aptly termed a “jurisprudence of successful treason.” Nor has interference with judicial independence in Pakistan come solely from the army. Only two years before he was deposed by Musharraf, former Prime Minister Nawaz Sharif’s ugly dispute with (and effort to remove) one of Chaudhry’s predecessors as Chief Justice culminated in a physical attack by a mob of Nawaz’s supporters on the Supreme Court building.

When asked to legitimize the army’s interventions into domestic politics, Pakistani judges have frequently acquiesced — as judges have, to be sure, in other countries during emergency-like moments, such as the United States in the face of internment and India in the face of Indira Gandhi’s Emergency. While such acquiescence has usually been discredited over time in other countries, in Pakistan the result seems to have been the validation of a central role for the army in domestic affairs. Those Pakistani judges who have tried to resist typically have been sidelined by the military regime; when Pakistani courts have acted somewhat more assertively in response to the army’s claims, it has tended to happen after civilian rule has been restored, and without repudiating the notion that military intervention into politics is valid and legitimate.

So far, that basic script has been followed once again under Musharraf’s regime, with the Supreme Court validating his coup in a March 2000 decision. However, during Chaudhry’s twenty-one month tenure as Chief Justice, the Supreme Court of Pakistan has increasingly shown the potential to become a thorn in the regime’s side. Since Musharraf already has significantly weakened the civilian bureaucracy and provincial governments, the judiciary is, along with the media, one of the few institutional power centers with the capacity to pose a challenge to the role of the army.

In Pakistan, the clichéd adage goes, politics is often driven by three As: Army, Allah, and America. Here in the United States, we like to focus (that is, if we are paying attention at all) on the first two, variously condemning the army’s interruption of the democratic process and raising the specter of Muslim extremists using Pakistan as a staging area for terrorism or even ascending to power in Musharraf’s place. As Americans, however, perhaps we should be devoting greater attention to the third A, and in particular how the role of the United States may be interacting with the role of the army and of religion in Pakistani affairs. Here’s what U.S. officials initially had to say about the current crisis in Pakistan:

The US State Department on Monday described the government’s action against Chief Justice Iftikhar Mohammad Chaudhry as Pakistan’s ‘internal matter’ and refused to comment on the development. “We won’t be offering any comment on that. It is an internal matter,” a State Department official told Dawn when asked for comments. [link]

In this particular instance, however, it is an “internal matter” whose triggering event — an investigation into post-2001 disappearances — may well have been influenced or more directly shaped by U.S. policy:

[U]ntil 9/11, disappearances were rare. Then, in late 2001, as al-Qaida fugitives fled from Afghanistan into Pakistan, Musharraf ordered that the agencies show full cooperation to the FBI, CIA and other US security agencies. In return, the Americans would give them equipment, expertise and money.

Suddenly, Pakistan’s agencies had sophisticated devices to trace mobile phones, bug houses and telephone calls, and monitor large volumes of email traffic. “Whatever it took to improve the Pakistanis’ technical ability to find al-Qaida fighters, we were there to help them,” says Michael Scheuer, a former head of the CIA’s Osama bin Laden unit.

* * *

The al-Qaida hunt became a matter of considerable pride for President Bush’s close friend, the president of Pakistan. “We have captured 672 and handed over 369 to the United States. We have earned bounties totalling millions of dollars,” wrote Musharraf in his autobiography last year. (The boast sparked outrage at home in Pakistan and was scrubbed from later Urdu-language versions of his book.) Prize captures included the alleged 9/11 mastermind Khalid Sheikh Muhammed, who has apparently confessed to a string of terror plots after four years as a captive, and Abu Faraj al Libbi, another alleged bin Laden lieutenant. But certain innocents were also swept up in the dragnet.

* * *

The truth is that the American government still quietly supports the disappearances of al-Qaida suspects, says Ali Dayan Hasan of Human Rights Watch, which has documented many cases. “The abuse has become even more brazen because of US complicity,” he says. He claims that American officials are regular visitors to ISI safehouses in Islamabad, Lahore and Rawalpindi where torture has occurred. They have supervised interrogations from behind one-way mirrors, he says. In FBI internal documents, he says, torture is referred to as “locally acceptable forms of interrogation”.

For some detainees the safehouses are the back door to the mysterious world of CIA “black sites” – secret prisons in Afghanistan, eastern Europe and across the Arab world where torture is allegedly rife. [link]

There is some irony that, in a week in which Khalid Sheikh Muhammed’s confession has received so much media attention in the United States, the deepening political fallout in Pakistan triggered by an investigation into the very policies and practices associated with his capture have received so little. It seems possible that, like the investigations in Italy and Germany into extraordinary rendition, an investigation into post-2001 disappearances in Pakistan could reveal information that the U.S. government would prefer the public not to know. The broader point is that there are many ways in which Pakistani political developments are being shaped by what the United States is doing, even though those influences may often be far from our public consciousness.

* * *

To echo Mike’s comment about the courage of Pakistani lawyers and others resisting Chaudhry’s suspension and house arrest, the scenes in Pakistan are quite remarkable. (Here is a particularly vivid set of photos.) Prominent and distinguished lawyers in India have expressed their solidarity with the “courageous lawyers in Pakistan who are opposing this frontal assault on the judiciary,” and they deserve the active support and encouragement of American lawyers as well.

Ten years ago this month, South Africa’s post-apartheid constitution went into effect, laying the foundation for the establishment of a non-racial democracy with a mandate to overcome the effects of decades of institutionalized inequality. The new South African charter has been widely heralded as among the world’s most progressive, entrenching a broad range of civil, political, economic, social, and cultural rights as foundational guarantees and explicitly mandating courts to consider international human rights norms when interpreting its fundamental rights provisions.

With formal South African apartheid receding into the past, however slowly, as South Africans work arduously to overcome its legacy, what does it mean to invoke the concept of “apartheid” in the world today more generally? Comparisons to South African apartheid have abounded for years, and have invariably been controversial. In recent months, for example, former President Jimmy Carter has argued to some controversy that Israel’s “rigid system of required passes and strict segregation between Palestine’s citizens and Jewish settlers in the West Bank” is tantamount to apartheid. Later this week, when it meets to consider India’s compliance with the International Convention on the Elimination of All Forms of Racial Discrimination, the U.N. Committee on the Elimination of Racial Discrimination (CERD) could confront the contemporary significance of apartheid in another context: the systematic and well-documented discrimination against India’s 165 million Dalits, or so-called untouchables. The issue is suggested in the title of a comprehensive report issued last week by Human Rights Watch and the NYU Center for Human Rights and Global Justice, “Hidden Apartheid: Caste Discrimination Against India’s ‘Untouchables.’” According to the report, to which students in the NYU International Human Rights Clinic contributed extensive research and analysis:

Dalits endure segregation in housing, schools, and access to public services. They are denied access to land, forced to work in degrading conditions, and routinely abused at the hands of the police and upper-caste community members who enjoy the state’s protection. Entrenched discrimination violates Dalits’ rights to education, health, housing, property, freedom of religion, free choice of employment, and equal treatment before the law. Dalits also suffer routine violations of their right to life and security of person through state-sponsored or -sanctioned acts of violence, including torture.

Caste-motivated killings, rapes, and other abuses are a daily occurrence in India. . . . A 2005 government report states that a crime is committed against a Dalit every 20 minutes. Though staggering, these figures represent only a fraction of actual incidents since many Dalits do not register cases for fear of retaliation by the police and upper-caste individuals.

Both state and private actors commit these crimes with impunity. Even on the relatively rare occasions on which a case reaches court, the most likely outcome is acquittal. Indian government reports reveal that between 1999 and 2001 as many as 89 percent of trials involving offenses against Dalits resulted in acquittals. [link]

Much of the factual information in the report is uncontroversial, coming directly from Indian governmental and nongovernmental sources and previous Human Rights Watch reports. Indeed, perhaps more noteworthy than any of the specific facts documented in the report is that a couple of months before its publication, in December 2006, the Prime Minister of India, Dr. Manmohan Singh, made a statement resting on similar premises — namely, that discrimination against Dalits is “fundamentally different from the problems of minority groups in general” and that South African apartheid may constitute “[t]he only parallel to the practice of untouchability.”

With such widespread acknowledgment of the pervasive and systematic nature of discrimination against Dalits, one plausibly might quarrel with the HRW/NYU report not for its characterization of that discrimination as “apartheid,” but rather for its suggestion that these abuses are in any sense “hidden.” To be sure, there are obvious differences between formal South African apartheid, which was lawfully enforced by the state itself, and substantive caste-based “apartheid” in India, which persists in the face of an extensive array of constitutional and statutory provisions that outlaw untouchability and caste-based discrimination and justify state intervention to eliminate those practices. But despite these laws, abuses against Dalits remain no less widespread or systematic for lack of formal legal sanction by the state. State actors remain complicit in countless abuses against Dalits and, at the same time, frequently fail to stop abuses committed by private actors. While affirmative action programs have played a significant role in improving the status of some Dalits, these limited government interventions have been inadequate given the overwhelming extent of caste-based discrimination in Indian society. Such abuses are hidden only to the extent that they “hide” behind their formal illegality while, in many contexts, remaining as visible as ever.

Analogies to South African apartheid not simply are potent rhetorically, but also have potential legal significance, if taken seriously, given the extent to which apartheid has been formally condemned by the international community. At the height of South African apartheid, the U.N. General Assembly adopted numerous anti-apartheid resolutions and effectively expelled South Africa from its meetings. An international convention against apartheid entered into force over thirty years ago and now has 107 state parties. Eventually, even the U.N. Security Council concluded that South African apartheid constituted a threat to international peace and security and adopted a number of anti-apartheid resolutions, including one mandatory resolution under Chapter VII of the U.N. Charter imposing an arms embargo against South Africa. Today, many years after the formal demise of South African apartheid, the Rome Statute expressly defines apartheid as a crime against humanity over which the International Criminal Court has jurisdiction.

Remarkably, India’s official report to CERD — which, in fairness, was submitted long before Prime Minister Singh’s recent statement — contains no information on discrimination against Dalits or other lower caste groups, which the Indian government had refused to acknowledge as encompassed within the Convention at all. This stance is unfortunately consistent with India’s more general resistance to meaningful engagement and cooperation with international human rights monitoring institutions — for example, by refusing to permit U.N. special rapporteurs to visit the country to examine various human rights concerns. There are poignant ironies in this resistance, which disregards CERD’s clear conclusion that caste-based discrimination falls well within the Convention’s protections against discrimination on the basis of “descent.” For one thing, when the Convention was being drafted, it was India which proposed to include discrimination on the basis of “descent” within its ambit, apparently with caste-based discrimination in mind. For another, it was India which first put the issue of South African apartheid itself on the international community’s radar screen. Around the same time that it was drafting its own post-independence constitution — which, like the new South African constitution today, was widely heralded at the time as a progressive model with a mandate to overcome past injustices and transform Indian society — India became the first nation to raise the issue of South African apartheid in the U.N. General Assembly. For many years thereafter, India continued to play a leading role in the global anti-apartheid struggle, during a period when many Western nations chose instead to make accommodations with South Africa’s apartheid-era regime.

Rather than regarding international human rights monitoring institutions as obstacles to be resisted, India could instead choose to regard greater engagement and cooperation with these institutions as a constructive means to help address what is widely acknowledged as a serious human rights challenge, as Meenakshi Ganguly has noted. Such an approach to the “hidden apartheid” of discrimination against Dalits would set an important example to other countries, and certainly would be more faithful to India’s own pioneering role in challenging the international community to help bring South African apartheid to an end.

Links: “Hidden Apartheid: Caste Discrimination Against India’s ‘Untouchables‘”; audio commentary by Professor Smita Narula, NYU Center for Human Rights & Global Justice and co-author of the report (English, Hindi)

(posted at Dorf on Law)

Earlier this week, Somini Sengupta reported in the New York Times on the controversy in the Indian state of Madhya Pradesh over an initiative by the BJP-led state government to conduct a mass yoga program in the schools. The program has caused opposition by some Muslim and Christian groups, who apparently object less to the yogic exercises themselves than to the recitation of Hindu religious verses as part of the program. (One Australian reporter wrote that the plan “enraged India’s 160 million Muslims,” but that’s self-evidently ridiculous.) When it comes to trying to keep yoga out of the schools, Indians are hardly alone. In the United States, Christian groups have been attacking school yoga programs for years, echoing the words of the current pope, who admonished back in 1989 that yoga can “‘degenerate into a cult of the body’ that debases Christian prayer.”

There must have been something in the air in January, however, for the Global War on Yoga seems to have intensified surged everywhere these past few weeks. In the United States, Christian groups have renewed their concerns that “yoga’s Hindu roots conflict[] with Christian teachings and that using it in school might violate the separation of church and state.” And in Canada — that’s right, even in Canada — concerns over the potentially satanic influence of yoga have also been increasing in recent days:

“Supposedly, we do not allow religion in schools — and yoga is a religion,” said cattle rancher Audrey Cummings, 68, who filed a complaint with the Quesnel school board and the Education Ministry over the Action Schools program. Quesnel is in the B.C. interior, about 90 kilometres south of Prince George.

* * *

Yoga turns kids’ minds toward Hindu gods, Cummings said.

“If you’re not seeking the God of the Bible, His power, then by default you’re in the other camp,” Cummings said. “The other source of supernatural power is Satan.” [link]

The social and legal contexts in which these disputes have arisen are different in ways that seem significant. In Madhya Pradesh, the initiative is part of a broader program by the Hindu nationalist BJP to promote yoga across the state. For the first session, the Chief Minister himself served as yoga-instructor-in-chief, broadcasting instructions by radio to state-sponsored programs not only in public schools and colleges, but also in private schools, government offices, and even prisons across the state. (They apparently didn’t get the memo from Norway, which scrapped prison yoga when officials discovered that it made inmates irritable and aggressive.) Especially given past efforts by the BJP and its affiliate organizations to “saffronize” education — for example, by rewriting textbooks to include chauvinistic perspectives on Hinduism and denigrations of other religious groups — it’s understandable that some would suspect the true motivations behind the program and raise concerns about its potential effects. Secularism is an entrenched part of the Indian Constitution’s “basic structure,” but religion and the state are not meant to be completely separate. Rather, Indian secularism protects freedom of religion within a broader constitutional framework that demands equal respect for all religions, on the one hand, and at the same time contemplates state intervention to constrain and reform some religious practices that violate fundamental rights, on the other. Of course, yoga is not an example of the latter, although some popular American variants seem pretty close to cruel and unusual punishment to me. (“Hot yoga“? Competitive yoga??) But institutionalizing it on such a broad and comprehensive scale — and more importantly, if this is in fact true, with a self-consciously saffron tinge — may raise understandable concerns about the state’s commitment to affording all religions equal respect. The Madhya Pradesh High Court has ordered the state to make the program voluntary, and according to at least one news report, the government has dispensed with the recitation of Hindu hymns as part of the program. But depending on the remaining details, that might or might not be enough to ensure a non-coercive educational setting in which all religions are afforded equal respect.

In North America, by contrast, the school yoga programs seem not to involve much religious content at all, much less any intent to promote Hinduism or coerce acceptance of Hindu values. At least I’d be awfully surprised if they did — in 2007, yoga in America seems mostly about health, fitness, and keeping up with the Joneses. (Indeed, both conservative Hindu organizations and yoga purists have objected to some of the ways in which yoga has morphed in America.) It’s also not clear if these programs are a mandatory part of the physical education curriculum or entirely elective. But even assuming these school programs necessarily and unavoidably incorporate some religious content, albeit implicitly, is that necessarily a constitutional problem in context? If the programs were being implemented to promote particular religious values — for example, if they were “PraiseMoves” programs — that would of course be one thing. But coercion or promotion of religion seems pretty unlikely in this context. Especially since Hinduism is almost certainly a minority religion in just about every school district in North America, Hindus are probably not in much of a position to be coercing anyone, and since the proponents of these programs are almost certainly not even Hindu themselves, it’s not all that likely that their goal is to promote Hinduism. If, in context, both the purpose and primary effects of these programs are basically secular, then maybe the folks getting exercised about all of this should just close their eyes, relax, sit quietly, and take a few deep breaths using their diaphragms.

Now, on to more serious religion-state issues — can we talk about how today, all over the country, we are coercing schoolchildren to participate in the rituals of that major religious holiday, Groundhog’s Day?

Time for a break from these trivial conversations about supposed Asian invasions, supposed Muslim invasions, intimidation (by government officials) of white shoe lawyers, intimidation (of potential jurors) by white shoe lawyers, Canadian parliamentary maneuvering, New York legislative non-maneuvering. Enough with all of this frivolity, already — it’s time to talk about something consequential. Yes, it’s time to talk about Bollywood, Reality TV, and the Law. (And no, despite how it sounds, that’s not a course that I have either taken or taught.)

Now that the “Celebrity Bigot Brother Big Brother” kerfuffle has hit the paper of record, some of you may already know a smidgen about the drama rocking the UK, the Subcontinent, and the South Asian diaspora this week. (Primers here and here, and for the pathologically obsessed, up-to-the-minute updates here.) The show features a couple of Hollywood has-beens low on media attention these days — Jermaine Jackson, of those Jacksons, and Dirk Benedict, of the old Battlestar Galactica. But more importantly for our purposes, the lineup also includes Shilpa Shetty, a significant Bollywood star, and three fading British luminaries, Jade Goody (famous for being famous), Danielle Lloyd (a former Miss Great Britain), and Jo O’Meara (of the band S Club 7). To make a long story short:

Jackiey [Jade’s mother] called Shilpa “the Indian” and asked if she lived in a shack, and then Danielle told Jade that she thought Shilpa was a dog and then Jo refused to eat the chicken that Shilpa had cooked because she had only put it on for 45 minutes, and she didn’t know where her hands had been, and now, well, now she knew why all Indian people were so thin, because they couldn’t cook properly, … and then Danielle said that Shilpa wanted to be white… [link]

Oh yes, and Jade’s boyfriend may or may not have called Shilpa a “Paki,” Danielle definitely did say that Shilpa “should f*** off back home” because “she can’t even speak English,” and Jade told Shilpa to “go back to the slums” and later called her a “pappadum.” Shilpa, though not exactly speechless, was left to ask (in English), “Is this what today’s UK is? It’s scary. It’s quite a shame really.” Faster than you can say “Michael Richards,” all hell breaks loose —effigies burning in India, official protests by the Indian government to the British government, calls for the show to be cancelled immediately, front-page headlines screaming about the possibility of a “bitter race war” between the UK and India, colloquies with Tony Blair about racism on the floor of the Commons during Question Time….

Hai rabba, stop the madness! Believe it or not, however, there is more to this story than celebrity gossip, political opportunism, and tabloid sales. As Booker Prize winner Kiran Desai has noted, for many British South Asians, who now constitute 4 percent of the UK’s population, the episode touches a nerve because it vividly calls to mind their own day-to-day experiences with racism in the UK over a period of many years. The public hangama has resulted in tens of thousands of formal complaints, more than any TV show in British history and enough to shut down the website of Ofcom, the British broadcast regulator. Ofcom and the police are investigating possible violations of (among other things) laws banning broadcasts intended to incite racial hatred. These reality shows are notorious for manipulating the social dynamics among their participants — remember the “Law & Order” episode covering this ground? — and if the show’s producers have deliberately provoked racial conflict on the show, an investigation might be useful in bringing that to light. Still, all of this seems to fall well short of incitement, and people calling for the show’s cancellation are probably missing the point. Certainly the entire obsession with l’affaire Shilpa misses more than one point, since there are far more consequential issues involving racism and inequality in British society than the bullying of a multimillionaire actress. But given the choice between shutting the show down and letting the spectacle unfold for everyone to see, it’s better for Britain to hold up a mirror and see just how ugly what the Independent has called its “barely submerged xenophobia” can sometimes get.