That is, so far, NOT the question being asked by the Obama administration, the military or most of the Beltway media mavens.

As Wired News points out, “With a wink and a nod from Pakistan, the US government has been carrying on a clandestine drone war over Pakistan for nearly two years. Now the question is whether those operations may expand to include drone strikes to the southern province of Baluchistan, where the Taliban’s Quetta Shura maintains a leadership base.”

Today, as the administration according to news reports, debates the military and political merits of escalation of drone attacks against suspected Taliban enclaves, what’s also not being asked nearly enough is what the moral and legal implications of conducting a covert war on terror by remote control.

Although the conventional wisdom is that drone strikes are a surgically clean, acceptable tactic of counter-terror with minimal “collateral damage”, the reality is quite other-wise, Max Kantar, a human rights investigator and activist, writes, in an important paper titled International Law: The First Casualty of the Drone War.

“The United States,” Kantar argues, citing ‘relevant and uncontroversial legal precedents established by the International Criminal Court”, is “in violation of international law on several counts in regards to its bombings of Pakistan.” Kantar writes:

For nearly four years, the United States has been using unmanned aerial vehicles, also known as “drones,” to repeatedly bomb targets in Pakistan.[1] The drone strikes, operated primarily by the CIA, are reportedly launched with the intention of killing top al-Qaeda and Taliban leaders and holding the Pakistani government accountable. Since the Obama administration has taken office, the U.S. campaign of drone strikes in Pakistan has markedly intensified, consistent with the trends established in the final eight months President Bush’s second term. Although the bombings of Pakistan fall into a much broader strategic U.S. policy in the region, it is the purpose of this analysis to focus solely on the legal implications and human costs of the drone strikes in Pakistan.

First I will review the existing reports entailing the legal status—combatant or noncombatant—of those killed in U.S. attacks. Secondly, I will provide a brief and basic overview of the laws of war and their immediate applicability regarding the protection of civilians and noncombatants in international armed conflicts in accordance with the Geneva Conventions of 1949, the Additional Protocols of 1977, and customary international law. Third, I will examine several case studies of various U.S. drone attacks in Pakistan in order to determine whether or not international law is being observed by United States. Fourth, I will briefly evaluate the fundamental legal credibility underlying the attacks using both the existing analyses provided by legal scholars and rights groups and well-established principles of law rooted in the Fourth Geneva Convention and the International Covenant on Civil and Political Rights. Fifth, using the available body of documentary evidence compiled by independent journalists, human rights groups, strategic analysts, media reports, and legal experts, as well as taking into consideration the basic tenets of international law in the context of the U.S. attacks, I will juxtapose the substance of U.S. actions with fundamental American legal standards with the purpose of establishing an appropriate technical classification for the United States’ drone policy in Pakistan. Lastly, I will conclude this analysis with a few final remarks addressing unanswered questions while also making some basic recommendations.

Phil Leggiere is a journalist who has published widely in national and trade publications including Wired, Salon, TimeOut NY, Bill of Rights Defense Committee blog and many others.

Your Success

You have endured economic and financial pressures on your legal practices, intimidation and violence by state authorities, the arbitrary detention and house arrest of your leaders, and the potential co-optation of a democratic election deposing a despised dictator. Now – two years after first taking to the streets to defend judicial independence – you have achieved a breathtaking vindication of grassroots democracy, inspiring legions across the world through your example.

The achievements include establishing a new ethical standard for lawyers around the world. Beyond representing the interests of our respective clients, our profession defends our societies’ most cherished notions: habeas corpus; due process; access to unbiased justice for all; and democratic checks & balances among independent powers. You have demonstrated and filled a momentous responsibility of the profession, and our world will be better when your peers around the world accept the same burden.

Your Continuing Aims

We understand that while the restoration of Chief Justice Muhammad Iftikhar Chaudhury represents a major milestone in the restoration of democracy, it remains a single stone on the path. During the period of the Chief Justice’s unconstitutional removal, the Court was expanded from 16 to 29 Justices. Despite his impending return to the bench, the executive continues to hold a controlling interest on the Court through Justices politically beholden to it.

Until the judges of the Apex Court are removed, the work of the lawyers’ movement in Pakistan will continue. And the Rule of Law Institute will stand with you in the U.S.

The Implications of Your Triumph for the Broader World

Among the least explored implications of your recent success is the victory it portends in the struggle against extremism. As you have pointed out throughout your campaign, the Musharraf dictatorship – and Zardari regime – have built a dismal counterterrorism record.

Terrorists cultivated, trained and supported by the ISI continued to receive assistance from the Pakistani military under Musharraf’s control. The Pakistani military establishment defrauded the U.S. out of $10 billion since 2001, much of which apparently went into the pockets of military cronies and extremists, rather than efforts – like yours – to oppose them. And, perhaps most exasperating of all, Musharraf, and Zardari after him, sheltered the architect of the world’s most pervasive nuclear smuggling ring.

Their tenure was devastating to Pakistan, as well as U.S. interests in the region. Musharraf’s assaults on judicial independence and habeas corpus not only undermined Pakistan’s and America’s rhetorical commitment to democracy, but also represented a massive loss in the ongoing battle for the hearts & minds of individuals recruited by violent extremists. And by attempting to politicize the Court’s election law decisions, Zardari has followed Musharraf’s lead.

In contrast, the restoration of impartial justice could undermine extremism, in several ways.

First, an independent judiciary will build allegiance among people whom Pakistan and the U.S. most need to cultivate. The Court’s evisceration of the justice system vitally eroded the government’s legitimacy on the ground. In the face of unchecked arbitrary rule – whether that of government officials or militants who have gained control over territory – the strongest weapon against lawlessness is an unbiased and legitimate means of resolving disputes peacefully.

Second, your victory helps align political interests throughout Pakistan. Your supporters around the country can now focus their energies on the struggle against extremism, rather than the struggle against totalitarianism.

Finally, you represent a brave new model of international partner for the United States. For too long, our nation has forgotten its once-lauded role as a champion of democracy & freedom. Yet your movement’s ultimate interests are closely aligned with those of the U.S. over the long-term: you favor access to justice for all, an expansion of opportunity, and the development of robust civil society. If, by taking note of your achievements, the United States learns the value of supporting indigenous movements for democracy in other countries, the impacts of your work will multiply.

On the one hand, Washington has continued to bomb targets inside Pakistan under the Obama Administration. However, the administration now appears willing to consider supporting democratic reforms and independent institutions. As we wrote after investigating the martial law imposed by General Musharraf in November 2007, the U.S. “should dedicate itself to advancing the values of democracy, rule of law and human rights over repression and autocratic rule. This view compels shifting U.S. policy…towards support of independent indigenous institutions that hold the greatest promise for building genuine democracy….” But it was your work that proved the viability of winning popular support by advancing democracy, opening the space for Washington’s consideration of options beyond the military aspects of “The War on Terror.”

As you continue rebuilding democracy in Pakistan, we stand at your side in the United States. And, around the globe, we celebrate your remarkable achievements together.

In solidarity and heartfelt thanks,
The Rule of Law Institute (ROLI)
www.ruleoflawinstitute.org

Shahid Buttar, Esq.
Ryan Hancock, Esq.
Devin Theriot-Orr, Esq.

In an effort to subvert the Long March, the Pakistani Government has passed emergency legislation to ban democratic dissent, issued detention orders for leaders of the lawyers’ movement and preemptively arrested several hundred opposition political party members and lawyers. Following the imposition of Section 144 of the Criminal Procedure Code, persons may be detained up to three months without charge for asserting their constitutional right to free speech and political assembly.

The ROLI demands the immediate release of all persons arrested and/or placed under house arrest, an end to all preemptive house raids and arrests and the withdrawal of all detention orders issued for the leaders of the lawyers’ movement. Further, the ROLI demands the withdrawal of Section 144 and all other restrictions, which unconstitutionally prohibit free speech and political assembly.

_______
The Rule of Law Institute (ROLI) aims to defend constitutional democracy wherever around the globe its components are threatened. Democratic societies must respect — and ROLI will promote — principles of separated & balanced powers among government authorities, judicial independence, free and open media, and individual rights consistent with international norms. ROLI also promotes economic opportunity for all and universal access to basic needs including shelter, food, health care and education.

Our organization takes particular interest in countries where the international community has inhibited these principles. ROLI addresses each issue in a variety of ways, including: policy and legal analysis, private diplomacy, investigative & fact-finding delegations, and public education efforts.

The Obama Administration has repeatedly recognized the importance of Pakistan to regional and U.S. national security. Given this recognition, and taking note of Vice President Biden’s insightful proposals before leaving the Senate, the President should abandon his predecessor’s failed policy and support meaningful democratic reforms and the restoration of the judiciary rather than military engagement alone.

March 9 marked the two-year anniversary of the Pakistani Lawyers’ Movement, which formed to restore the Rule of Law in wake of executive assaults on the judiciary. After Pervez Musharraf – a military dictator supported by the U.S. – sacked the Chief Justice of Pakistan’s Supreme Court in March 2007, the Lawyers’ Movement took to the streets, building a national movement across all sectors of society to restore democracy. In the response to mass protests, Musharraf declared an emergency, suspended the constitution and ordered the arrest and detention of judges, lawyers, journalists, and civil society members. Musharraf claimed that he could not fight the U.S. “War on Terror,” while facing the democratic constraints of an independent judiciary and free press.

Despite U.S. support for Musharraf, he was ultimately forced by public pressure to resign in August 2008. This was the first time in Pakistan’s 62 year history that a military ruler peacefully stepped down from power. However, despite Musharraf’s resignation, general elections in February 2008 in which the Pakistani people overwhelmingly supported judicial restoration, and repeated promises from Pakistan’s political elite, the judiciary remains politicized – as illustrated last week when it ruled the Sharif brothers ineligible. To this date the judiciary has not been fully restored and the Rule of Law continues to wither.

President Asif Zardari continues to defy the will of the electorate by failing to restore the judiciary. Zardari, like the military rulers before him, has no interest in allowing a Court the independence necessary to check his unrestrained fiat. Like Musharraf, Zardari persists in manipulating and intimidating the judiciary as a means of consolidating his personal political control. Last week’s Supreme Court decision concerning the Sharif brothers’ eligibility to contest elections is a perfect illustration.

Nawaz Sharif alleged that Zardari offered to drop their case in exchange for the Sharifs’ assurance that they would end their call for the restoration of the judiciary. Circumstantial evidence strongly suggests that Zardari engineered the court’s decision in order to eliminate his political rivals and did so through three judges who were unconstitutionally appointed by Musharraf. Using the court’s decision as cover, Zardari ordered that Punjab, a province previously controlled by the publicly elected PLM-N, come under Executive rule.

In a further effort to silent political dissent, Zardari suspended the PPP party membership of Aitzaz Ahsan, a leader of the Lawyers’ Movement. Pakistani lawyers and civil society continue to demand the restoration of the judiciary and the completion of the transition to democracy. In response, Zardari has pushed through legislation banning peaceful political assembly in Islamabad, Punjab and Sindh, barred the press from entering the National Assembly and preemptively arrested political party opponents and lawyers.

The U.S. supported Pakistani government, in spite of its attacks on the Rule of Law, has undermined not only democracy in Pakistan, but also U.S. interests in the region. For example, since 2001, Musharraf squandered over $11 billion dollars in direct U.S. aid intended for fighting terrorism, which he allegedly diverted to retain his support within the military and upgrade weapons poised against India, while terrorism related offenses increased. U.S. military aid to Pakistan continues unabated, further entrenching the position of the military at the expense of civilian institutions.

In the three months since Obama has taken office, his administration has continued to bomb targets inside Pakistan while failing to insist on democratic reforms. U.S. policy should not focus solely on the military aspects of “The War on Terror.” Rather, it should aim to win popular support by advancing democracy. This view compels ending unconditional support for the military and instead supporting independent institutions that hold the greatest promise for building genuine democracy in Pakistan. Even the Pakistani government acknowledges that a military policy alone will not bring sustainable regional or international security, as evidenced by Zardari’s recent negotiation with Taliban militants in the northern Swat Valley.

Specifically, Obama should commit to support the plan outlined by Joe Biden when still Chairman of the Senate Foreign Relations Committee and Senator John Kerry. The U.S. should curb it’s dependence on the ISI and military, impose rigorous auditing procedures on all future military aid and invest in long-term development projects which focus on education and public infrastructure to demonstrate U.S. support for the people – rather than the military generals – of Pakistan. At a minimum, Washington should insist upon the restoration of all judges deposed in 2007. Failure to do so will prolong instability in Pakistan and leave the rest of the world subject to the country’s continued lawlessness.

This National Conference having deliberated upon the need for the restoration of the independent judiciary in the country and for that purpose it was necessary to undertake a peaceful and non-violent Long March to Islamabad and then to peacefully undertake a sit-in (Dharna) in front of the Parliament House, adopts the following resolution:

WHEREAS: This Conference is of the view that the actions taken by the General Musharaf on November 03, 2007 were wholly illegal, malafide and unconstitutional and therefore cannot be sustained;

AND WHEREAS: The action of November 03, 2007 ought to have been reversed by executive action and all their effects ought to have been purged immediately after General Elections of February 18, 2008 but was not done;

AND WHEREAS: The martyred leader of Pakistan Peoples’ Party Mohtarma Shaheed Benazir Bhutto had promised a Long March to ensure the reinstatement of Chief Justice Iftikhar Muhammad Choudhry and his independent colleagues; while Mr. Asif Ali Zardari, the Co-chairman Pakistan Peoples’ Party has thrice through formally written and signed declarations, promised the restoration of the judges to the position that prevailed on November 02, 2007; but these promises have not been kept by the Federal Government;

AND WHEREAS: The people of Pakistan demand for an independent judiciary so that the nation may attain stability, prosper, progress economically and develop into one of the leading states in the comity of nations, as an independent judiciary is the most essential element to ensure the sustenance and stability of the democratic order, to ensure economic growth and to attract investment, that will then address the problems of unemployment, inflation, crimes, law and order to make Pakistan a terror-free and peaceful place;

AND WHEREAS: This Conference is of the opinion that after the failure to fulfill its promises the Government has left the nation with no option whatsoever but to take recourse to a peaceful and non-violent Long March and Dharna as proposed by the Lawyers of Pakistan;

AND WHEREAS: The Conference has taken note of the unconstitutional steps taken by the Federal Government in imposing Governor’s Rule in the Punjab and ousting the government of a Party that continues to display that it has mandate of the people of the Punjab. The Conference is aware that this illegal step has been taken to attempt to subvert the Long March and Dharna but has resulted in such a designed turmoil in the Punjab Police that resulted in the security lapse resulting in the tragic attack on Sri Lankan Cricketers in Lahore. Had the malafide transfers not been made, and had the Punjab government not been ousted this tragic incident would have been prevented.

NOW THEREFORE IT IS RESOLVED THAT:

This Conference calls upon the entire nation to participate wholeheartedly in the Long March scheduled to start from Quetta and Karachi on March 12, 2009 so as to reach Islamabad on March 16, 2009 and there to stage a peaceful and non-violent Dharna (sit-in) until the Chief Justice Iftikhar Muhammad Choudhry and his colleagues judges are restored to the offices they held on 02 November, 2007.

SUPPORT THE RULE OF LAW AND THE LAWYERS OF PAKISTAN ON MONDAY – 01/26/09!

WHAT:         Pervez Musharraf Lecture (World Affairs Council)

WHEN:         Monday January 26, 2009

WHERE:      The Franklin Institute, 222 North 20th Street Philadelphia, PA

TIME:           5:30 p.m. to 8:00 p.m.

CONTACT: pakistanjusticecoalition@gmail.com

Please join the Pakistan Justice Coalition and the Philadelphia Chapter of the National Lawyers Guild on Monday January 26, 2009, to reiterate the significance of the rule of law and human rights over repression and autocratic rule.  As lawyers we have a professional and ethical responsibility to confront violations of the rule of law no matter where they occur.

See: Philadelphia Bar Association’s Statement; Pennsylvania Bar Association’s President’s Statement; American Bar Association’s President Neukom’s Statement; Defending Dictatorship: U.S. Foreign Policy and Pakistan’s Struggle for Democracy.

The World Affairs Council of Philadelphia has invited, Pervez Musharraf, former military dictator of Pakistan “to address the prospects for peace and the formidable challenges of diplomacy in South Asia.”  It is ironic that a former military dictator has been invited to lecture on the subject of democracy and the prospect of peace when his rule resulted in Pakistan becoming, as President Clinton declared, “the most dangerous country in the world.”

The Bush Administration supported the Musharraf regime on the grounds that it was an ally in the so-called “war on terrorism” and overlooked its violations of fundamental democratic rights.  However, the true battle being waged today is not between democracy and “terrorism.” Rather, it is the battle between advancing the values of democracy, rule of law and human rights, on the one hand, and repression and autocratic rule on the other. The way to combat extremism and the repressive rule to which it aspires is by supporting the expansion, rather than the contraction, of human rights.

Background Information:

On November 3, 2007, the President, in his capacity as Chief of Army Staff, declared an emergency and issued a Provisional Constitutional Order (PCO) and suspended the constitution. Musharraf ordered the arrest and detention of twelve (12) of seventeen (17) Supreme Court Justices, sixty (60) Senior Judges and several thousand lawyers, journalists, and civil society members throughout Pakistan.  Further, the (PCO) suspended fundamental rights guaranteed by Pakistan’s Constitution such as freedom of movement, assembly, association, speech and property rights.  In response bar associations all over the world condemned Musharraf’s actions.  The Philadelphia Bar Association stated, “We condemn the actions of the President of Pakistan, who has taken it upon himself to violently attack the lawyers and judges as he systematically shuts down his nation’s lawful institutions of justice. That he does this in the name of fighting terrorism is horrible in the extreme. Institutions of democracy should never be victims of fear. It is precisely this strength of democracy that guarantees that a just society may continue, especially in troubled times.”  On August 18, 2008, in order to avoid impeachment proceedings, Musharraf resigned as Pakistan’s President.

Musharraf’s rule at a glance:

• General Perevz Musharraf came to power in 1999 through a military coup;
• Musharraf held the post of President and Chief of Army Staff (COAS) in violation of Pakistan’s Constitution;
• Post 9-11, Pakistan received $11 billion dollars in direct U.S. aid for fighting terrorism, funds that Musharraf diverted in efforts to retain his support within the military and upgrade weapons to be used against India while terrorism related violence increased;
• Pakistan’s intelligence agencies detained hundreds of persons without providing them any procedural due process protections pursuant to Pakistan’s Constitution.  Over six hundred persons are still missing in Pakistan;
• Journalists and press outlets faced state censorship, repressive policies imposed by the Pakistan Electronic Media Regulatory Authority (PEMRA), direct and indirect threats to media institutions and individual journalists, loss of advertising revenues, revocation of broadcasting licenses and, most insidiously self-censorship;
• Journalists working along the Afghan border alleged that Musharraf’s government engaged in direct support of militants by providing arms, ammunition and supplies;
• Inter-Service Intelligence (ISI) admitted that they led the effort to manipulate Pakistan’s national election in 2002 and offered to drop corruption cases against candidates who would back President Musharraf and Musharraf issued a series of executive decrees to bar political party leaders from contesting the polls;
• A historically unprecedented number of national and provincial seats went to the Muttahida Majlis-e-Amal (MMA), an alliance of six religious fundamentalist (Pro-Taliban) parties;
• In 2006, Musharraf reached an agreement with tribal leaders along the Afghan border in Balochistan entailing the withdrawal of Pakistan’s military from the tribal areas in exchange for self-policing by tribal leaders. A  2007 NIE revealed that, after having been displaced from Afghanistan by the NATO invasion following 9-11, al-Qaeda had reconstituted its network and expanded its original capabilities in Pakistan;
• Nuclear proliferation by Pakistani authorities remains uninvestigated. In 2004, nuclear scientist Abdul Qadeer Khan, whose work establishing Pakistan as a nuclear state won him acclaim as a national hero, admitted to running an international technology smuggling operation which provided nuclear weapons technology to Libya, Iran, and North Korea. Despite his initial arrest, he was eventually pardoned by Musharraf and has yet to be produced for debriefing by international investigators despite demands by the U.S. House of Representatives and the Swedish Weapons of Mass Destruction Commission; and
• Prior to his 1999 military coup, Musharraf led Pakistan in an armed conflict with India in the Kargil region in northern Kashmir.  The Pakistani military fought alongside armed militant insurgents such as Lashkar-e-Taiba.

Musharraf’s rapid fall from power demonstrates the bankruptcy of the Bush administration’s policy of advocating liberty while supporting autocracy. As we have stated, the real struggle today is not between democracy and terror, but between those who support expansion of democratic and human rights and those who seek to infringe upon them. The Bush Administration supported the Musharraf regime on the grounds that it was an ally in the so-called “war on terrorism” and overlooked its violations of the most fundamental democratic rights. Both Administrations also refused to respect judicial independence, accepting the removal and incarceration of over half of Pakistan’s legitimate judges. In the face of popular opposition that even potentially rigged elections could not conceal, the Musharraf presidency was finally –and fortunately — doomed to failure.

President Bush often claims liberty is the birthright and natural desire of all people. Had he really believed his rhetoric, however, he would have supported the heroic lawyers of Pakistan in their demands, rather than the now-deposed and discredited Musharraf.

The Lawyers Movement has represented the legal profession at its best. We stand with it and share the joy of its triumph. While Pakistan’s future remains far from certain, it has taken an enormous step forward

Law minister Farooq Naek claims that he has single-handedly drawn up this draft bill under Asif Zardari’s guidance. His assertion must be true for the bill is ambiguous and shoddily drafted. But poor draftsmanship and lack of constitutional prudence is the least of our concerns at the moment. This draft bill is not just ambiguous, but malicious for (i) it indemnifies the Nov 3 actions of the general and (ii) if passed, it would mutilate the basic structure of our constitution by turning the judicial branch into an extension of the executive for all times to come. The PPP has stated that this bill is not ’sacrosanct’ and will be subject to change in view of comments received from coalition partners and the public. Nevertheless, as an embodiment of the PPP’s base position on (a) the treatment to be meted out to dictators and usurpers, (b) the desirable form of ‘judicial independence’, (c) the preferred balance of power between the pillars of the state, and (d) acceptable schism between words and actions, this draft bill is shocking.

Let us recap the issues in question. The legal fraternity has been crying hoarse that the choice of constitutional amendment as a ‘modality’ to undo the mess created by the general will, by implication, amount to accepting his actions as legal and underwriting the assumption that the constitution can be amended through the barrel of a gun. An illegal order is simply void and doesn’t need to be reversed through law making. Setting such a precedent could come back to bite us in the future just like the judicially manufactured ‘doctrine of necessity’ continues to haunt us today. But this concern is about future dictators obligating democratic forces to manufacture a two-thirds majority in parliament to bypass their edicts. Let us turn to the present. The PPP has tried to be cute about the indemnity issue by not addressing it directly in the draft bill, while imbedding a legal cover for the general’s actions in the language of the proposed Article 270CC that talks about restoration of the superior court judges.

Article 270CC states that “notwithstanding anything contained in any provision of the constitution, the Oath of Judges Order 2007, the High Court Judges Order 2007, the Supreme Court Judges Order 2007 and any other law for the time being in force or judgment of any court including a high court and the Supreme Court, the judges of Supreme Court and high courts including the chief justice of Supreme Court and chief justices of high courts who had ceased to continue to hold office in pursuance of the Oath of Judges Order, 2007, dated the 3rd day of November, 2007, shall stand reinstated/restored to the position and seniority they were holding on the 2nd day of November, 2007.” The language of this article assumes the legality of the Oath of Judges Order, 2007, and affirms that the deposed judges had ceased to hold judicial office, before creating a constitutional carve-out or exception to restore them.

Even if a constitutional amendment was the PPP’s preferred route to restoration, to pre-empt a stay order from the Dogar court and avoid legal confusion as claimed by the PPP, the language of the restoration article could have stated that the general’s actions of Nov 3 — including the forced removal and illegal detention of judges — were illegal, and notwithstanding Article 6, the PCO judges’ initial oath of office under Articles 178 and 194 of the constitution and the Supreme Court order of Nov 3 (rendered by the full court headed by Chief Justice Iftikhar Mohammad Chaudhry declaring the general’s acts of Nov 3 as unconstitutional), the judges who swore an oath under the general’s PCO and those appointed after Nov 3 will be retained. Such a construction of the restoration clause would acknowledge the illegality of the general’s actions and the judges who chose to swear by him, while restoring the deposed judges and also retaining the PCO judges (that the PPP wishes to do for questionable reasons). What it would not do is grant general indemnity to a dictator’s actions by assuming their legality.

More shocking than the indemnity being granted to the general is PPP’s proposed model of judicial independence. The draft bill proposes new procedures to appoint and remove judges. The proposed Articles 177A and 193A provide for the creation of a commission comprising members of the judiciary and also including the law minister to make judicial nominations. The prime minister would be provided two names for each vacant position and he would elect one nominee and forward his/her name to a joint parliamentary committee, comprising members of the treasury and the opposition, for confirmation. This process vests in a parliamentary committee the right to debate and confirm judicial appointments and is an improvement over the previous opaque system despite the fact that it wrests away the judiciary’s sway over judicial appointments.

The mechanism for recruiting judges, while important in terms of electing the right people to serve the system of justice, only has a small part to play in determining the independence of a judge once appointed. It is the security of tenure and protections against arbitrary removal that fortify judicial independence and empower a judge to act without considerations of fear or favour. And it is this crucial security that the draft bill threatens to take away from the judicial branch. The new Article 209 proposes to disband the Supreme Judicial Council (comprising the chief justice of Pakistan, two senior most judges of the Supreme Court and the two chief justices of high courts) that is authorized to investigate charges of judicial misconduct and remove judges accordingly. This council is to be replaced by a judicial commission that will consist of a “non-politicized” retired chief justice in the chair, and two “non-politicized” retired judges of the Supreme Court and one “non-politicized” retired judge from each high court.

The members of the commission will be appointed by the government on such terms and conditions as determined in its discretion. Thus, a body of retired judges, serving at the pleasure (read whims) of the executive with no constitutional tenure and security of service shall sit in judgment over which judge is fit to serve. This provision will constitutionally empower the ruling party to stuff this judicial (witch-hunt) commission with loyalist retirees and once they initiate an investigation into the conduct of a judge, such judge will be sent on forced leave during the period of such investigation. Thus, the sword of Damocles will continue to hang over all judges at all times who would be well advised to remain invisible and compliant to avoid the ire of the government. Even if the witch-hunt commission does not eventually remove a judge who dares to act independently, the threshold for initiating an investigation against a judge is so low that the government would be able to manipulate the outcomes of matters he/she is ceased of by initiating an inquiry and sending him/her on forced leave.

From a historical perspective, the malice of Pakistan’s judiciary has not been its ‘activism’ but the willing surrender of its duty to defend the constitution and protect fundamental rights of citizens against transgressions of the executive — more so in times when executive authority is annexed by a dictator. Sixty years after independence, under immense pressure from the bar and the public, the judiciary finally dared to question the whims of the general who monopolized the state’s executive authority. It was the possibility of creating a judiciary free from the shackles of the executive that fuelled the rule of law movement of the lawyers and civil society. And what lessons did the PPP draw from the movement? That the constitution needs to be amended and institutionalized restraints built-in so that the judiciary and individual activist (read miscreant) judges can be disciplined before their dissenting voices can stream-roll into a popular movement.

Part II

What would have happened to the rule of law movement had the PPP’s proposed amendments been a part of the Constitution in 2007? There would be no movement. The president would not need to unconstitutionally sack the Chief Justice on March 9, 2007, because he would have the constitutional authority to do so under Article 209. The government would not need to coerce and entice members of the Supreme Judicial Council to seal the fate of an ‘errant’ Chief Justice, because it would have the authority to compose a witchhunt commission that is predisposed to toeing the official line. In such a neutered system of justice, the courts would be packed by judges groomed in the Dogar mould and the rulers of the day would never need to declare a coup against the judiciary as witnessed on Nov 3. If approved, the amended Article 209 alone will transform the basic structure of our Constitution that envisages the judicature as an equal and independent pillar of the state, by making it an appendage to the executive.

The last few years have seen such extensive debate on the issue of appointment and removal of judges as never witnessed before. Such debates preceded the execution of the charter of democracy between the PPP and the PML-N, and consequently the appointment process streamlined in the charter, and now with some variation in the draft bill, endeavours to institute a transparent consultative process to appoint judges that includes the judiciary, the executive and parliament. Is it a sheer oversight then that the PPP opted for a removal process that leaves judges of superior courts at the mercy and whims of the executive? Who would determine whether the members of the proposed witchhunt commission are ‘depoliticized’? What does the word even mean and is it capable of being translated into a judicially enforceable concept? And why leave parliament out of a removal process that supposedly aims to strengthen judicial accountability? If judges are appointed after extensive bipartisan scrutiny, why not allow parliament to impeach them with a two-third majority as happens in many other jurisdictions, including the United States?

We have heard Asif Zardari repeat ad nauseam that the PPP is committed to strengthening the institution of judiciary and that focus on individuals in the context of restoration is misplaced. While the proposed removal process is indicative of the PPP’s approach to institutional independence of the judiciary, equally malicious is the duplicity in the words and deeds of the party when it comes to emphasis on individuals. While the PPP emphasizes de-linking the movement for judicial independence from the restoration of CJ Chaudhry, what it wants in reality is a shift of focus from the person of CJ Chaudhry in a manner that serves the person of Justice Dogar. That is why the draft bill includes three articles that have been drafted solely to return Justice Dogar to the office of the chief justice even in the aftermath of restoration. Under Article 179(2) the tenure of the chief justice will be capped at three years (or maybe five if the pressure from the PML-N and the lawyers doesn’t subside) to hastily show CJ Chaudhry the door after restoration.

Given that Justice Dogar reaches the age of superannuation on March 21, 2009, the retirement age of the judges of Supreme Court is being enhanced to 68 through Article 179(1), to give him a few more years as chief justice. But then there is the problem of Justice Javed Iqbal who was the second senior most judge on Nov 3 after CJ Chaudhry. While Justice Javed Iqbal was not invited to be a PCO judge he was offered a ceremonial position by the Musharraf regime that he took citing personal financial need. Now if all judges are restored, the CJ’s tenure is capped and the retirement age enhanced, Justice Dogar still won’t become CJ as Justice Javed Iqbal is not only senior but would also retire after Justice Dogar. Thus a proviso has been added to Article 270CC, stating that all judges would be restored, except a judge who has taken up another position with the government. Justice Javed Iqbal is the only such judge and so instead of including a long-winded fable in the proviso, Mr Naek could simply have stated that all judges except Justice Javed Iqbal will be restored.

The PPP’s draft bill has been a disappointment of enormous proportions. One the one hand it documents the double-speak of the PPP that enjoys taking jibes at the general as a populist measure while seeking to indemnify his felonies by amending the Constitution, and utters platitudes in favour of a strong judiciary while devouring its independence through law. On the other hand, the content of the draft bill suggests that the PPP has no intention of resolving the judicial gridlock. As an embodiment of the PPP’s policy on the issue of restoration of judges and judicial independence, this bill makes evident that the incumbent PPP leadership simply does not subscribe to the principles that have been driving the rule of law movement and the choice of constitutional amendment as a mode to restore judges is simply a smokescreen to defer the issue indefinitely.

To the extent that PPP’s policy on restoration is being defined by its desire to have a pliant ‘jiala’ court serve its government uninhibited by law and principles, it cannot afford to restore the deposed judges without amending Article 209 of the Constitution. Because the moment the Nov 3 judiciary is restored, the Supreme Judicial Council under the existing Article 209 could be constituted to investigate the misconduct of the PCO judges, and consequently the leverage Zardari house enjoys in this regard might vanish in a moment along with its dreams of retaining a Dogar Court to look out for Mr Zardari’s legal interests (including the longevity of the NRO). And then the constitutional amendment route has its advantages too. After all the PPP has never explicitly stated that it is opposed to restoring the judges and yet in theory it has now thrown the ball in the court of its coalition partners by handing them the malevolent draft bill.

The coalition partners, the lawyers, civil society and the media can now continue to debate the draft bill clause-by-clause, and once it is introduced in parliament, the debate and disagreement can continue till the cows come home. Meanwhile, the deposed judges can hang in a limbo, the Dogar Court can stay in place, and Zardari House can continue to hold the reigns of the country. During this period of foot-dragging in the name of consultation, the lawyers’ movement might die its own death due to fatigue. If that doesn’t happen and the long march does shake up the echelons of power, the immediate casualty will be General Musharraf. And such outcome might in itself take the wind out of the sails of the lawyers’ movement by providing an exhaust to this nation’s pent-up anger and emotion. And then PPP can take charge of the presidency as well while continuing its antics in parliament over the restoration issue.

Asif Zardari has written an intelligent script. But as a student of history and politics he should heed the lessons from General Musharraf’s recent experience and realize that in real life fairytales do not always end as desired. During the first half of 2007 there were ample opportunities for the general to read the writing on the wall and change course. Being the commando that he is, he sought to become infallible and consequently trapped himself in a corner where he now remains at the mercy of Mr Zardari and their US patrons. There is always a time for redemption, followed closely by unforgiving accountability. The pursuit of his self-scripted fairytale might appear to be the best option for Asif Zardari for the time being. But appearances can be deceptive. The safer option would be to reassess his options with a finger on a national pulse and make amends before time runs out.

By Babar Sattar