In response, President Ratu Josefa Iloila suspended the constitution, sacked the sitting judiciary, declared a 30-day state of emergency, curtailed domestic and international media and reappointed Commodore Frank Bainimarama as Prime Minister for five years.

The Public Emergency Regulations 2009 suspends freedom of speech, assembly and association, and equal protection of the law, all of which are guaranteed by the International Covenant on Civil and Political Rights. Further, the regulations give the military the power to close roads, order pre-emptive arrest, and censor the media.

ROLI supports the Fiji Law Society’s efforts to resist President Ratu Josefa Iloilo’s abrogation of the Fiji Constitution and the sacking of the judiciary. Specifically, the Fiji Law Society has called for the sacked judges to remain on the bench and to boycott all judges who swear allegiance to the military regime.

ROLI urges President Ratu Josefa Iloila and Commodore Frank Bainimarama to abide by the Court of Appeals ruling and respect the 1997 constitution. ROLI further urges all international donors, including the United Nations and the China Development Bank to discontinue all aid to Fiji and encourages the Pacific Island Forum and the Commonwealth to suspend Fiji’s membership until the state of emergency is lifted, the constitution is no longer suspended, and elections are promptly held.

Thus, we now have in place a chief justice and other deposed judges holding the reigns of the judicial branch who had pledged to protect and defend the Constitution as it stood before Musharraf molested it on Nov 3. We also have in the ranks PCO judges, who swore to uphold and abide by the edicts of the general. In his post-Nov 3 phase of being the constitution-unto-himself phase, the general, by scribbling a new provision into the Constitution, also created an Islamabad High Court, which now continues to function as a valid court of justice.  This is a much-needed court, but its constitutional status remains to be legitimised.

The question now vexing everyone is, how do we resolve the contradictions we are mired in? Can we live with a situation where the chief justice and deposed judges have been restored on an assumption that negates the explicit ruling of the Dogar Court in the Iqbal Tikka Mohammed Khan case (which “validated” Musharraf’s unconstitutional actions of Nov 3)? If suspending and molesting the Constitution is an abhorrent crime under our fundamental law, aptly labelled as treason, can we have the perpetrator of such crime run amok amongst us making speeches to the media and every nincompoop still desirous of being saved by an ex-Khaki? Now that restitution of the constitutional judiciary has been accomplished, should the retribution of such vanguards of justice who aided and abetted the transgression of our fundamental law not be a logical next step?

This is the first time that we have found ourselves in a situation where effective legal defences against future praetorian rule, backed by mass public opinion, can be constructed. We have a judiciary headed by judges who successfully withstood the coercion of a dictator and the enticing logic of expediency. We have an army that has limited interest (and ability) at the moment to interfere directly with the political and legal processes. We have the erstwhile dictator still around, and as conceited today as he was a decade back, if not more. We have no other stakeholders who would like to hold the necks out to shield Musharraf from accountability of his illegal acts. And we have a nation yearning for the enforcement of a rule of law that doesn’t distinguish between offenders on the basis of their station in life.

The issue of undoing the consequences of Nov 3 might have been a political question over the last year and a half, while we had a judiciary that had sworn to protect the general and was complicit in his constitutional transgression. It is a purely legal question now that must be resolved in accordance with the dictates of our Constitution. A mass public movement brought about the restoration of the judges, thereby undoing one of the consequences of the unconstitutional acts of Nov 3. But undoing the act itself, addressing its remaining consequences and holding the transgressors liable will have to be brought about through formal judicial processes. In order to begin cleaning up the debris left behind by Musharraf, the court will need to start with Musharraf himself and the legality of his Nov 3 actions.

Concepts such as “holding the Constitution in abeyance” and “extra-constitutional actions” are contrivances of our Sharifuddin Pirzadas and, strictly speaking, mean nothing more than “transgressing the Constitution” and “unconstitutional,” respectively. Our legal vultures have deliberately introduced such fabrications to window-dress the gaping holes poked in our Constitution by dictators. The fake distinction between “unconstitutional” and “extra-constitutional” creates wriggle room for “doctrines of necessity” to be sneaked in and such lexicon should therefore be excluded by our Supreme Court to cleanse our constitutional jurisprudence.

One lesson brought home by the rule-of-law movement was that the world of justice must have no room for expediency. There is overwhelming legal and political consensus in Pakistan that Musharraf broke the law and abrogated the Constitution on Nov 3, as a consequence of which the chief justice and other deposed judges were restored through an executive order. Not charging and trying Musharraf for criminal conduct is thus indefensible. It is not really for the court to determine whether or not it is desirable to try Musharraf, for the court doesn’t have such arbitrary discretion. Article 6 of the Constitution mandates that “any person who abrogates or attempts to abrogate or conspires to abrogate, subverts or attempts or conspires to subvert the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason.” And it further states that the “Parliament shall by law provide for the punishment of persons found
guilty of high treason.”

So let the court rule on the culpability of Musharraf under Article 6, and the Parliament can then debate the merit or desirability of actually punishing him if he is found guilty. Judicial matters are to be decided on legal principle, which leaves no room for expediency and political considerations in judicial discourse. However, the Parliament can draft law and make exception on the basis of policy compromises, and should it choose not to punish Musharraf in some “larger good” of the country, so be it. Further, even if the Parliament wishes to punish Musharraf, President Zardari can always pardon him in exercise of his discretionary powers under Article 45 of the Constitution. If the constitutional jurisprudence of Pakistan is to be resurrected and another khaki saviour is to be deterred from conquering his nation yet again, there is need to breath life into Article 6. The actual fact of Musharraf serving a sentence is not as relevant. But his getting
convicted for molesting the Constitution certainly is.

But in addressing the actions of Nov 3, the Supreme Court will also need to delineate and define its own authority. This nation has moved back and forth between the Doctrine of Necessity being declared dead (as in the Asma Jillani case), to it being brought back from the grave (as in the Nusrat Bhutto case). What we require is a norm-setting epochal ruling that articulates a theory of democracy and holds in unequivocal terms that the Supreme Court, as a creature of the Constitution that derives all its authority from this fundamental law, possesses absolutely no authority to validate an unconstitutional action. Such concept once entrenched as part of our constitutional law and thinking will remove the stopgap stage presently available to our dictators, where they get themselves “validated” by handpicked court, before coercing or co-opting an engineered Parliament into providing constitutional cover to illegal acts.

Only after Musharraf’s culpability is established will there be room to consider the role of judges who were complicit in his acts. It makes no legal or logical sense to go hounding accomplices, when the legality or lack-thereof of the act that they facilitated is yet to be determined. Presently there are at least five categories of judges. One, those led by the Chief Justice that have just been restored. Two, those who didn’t swear an oath on Nov 3, but returned to the court last year under the Naek formula after swearing a fresh oath under the Constitution. Three, those led by Justice Dogar, who swore an oath to protect Musharraf’s PCO on Nov 3. Four, those appointed after Nov 3, 2007, in consultation with Justice Dogar and have been confirmed after serving as additional judges for one year. And five, those appointed after Nov 3, 2007, in consultation with Justice Dogar by the Musharraf and Zardari regimes and are still serving as additional judges.

As for the fourth and fifth category, the Supreme Court will have to determine, as part of its review of the Nov 3 acts, whether or not the mandatory process of consulting the chief justice in appointing new judges was abided by while the de jure chief justice was deposed. In any event, judges from the fifth category will stand removed if they are not confirmed at the end of their initial term in office. Those in the first three categories were the constitutionally appointed judges as of Nov 3, 2007. None of them can be removed except in accordance with the procedure laid out in Article 209 of the Constitution. It would have been heartening if members of the Supreme Court bench that rendered the Tikka Iqbal Mohammad Khan ruling had accepted their fault and resigned on restitution of the deposed judges. But, then, it is probably unrealistic to expect scroungers to grow integrity overnight.

Once the culpability of Musharraf’s acts is established, it will be for the government or the Supreme Judicial Council to determine if some judges in the third category above, who abetted Musharaf’s acts, should be charged with misconduct and/or treason. It is time for the Supreme Court to look at the Nov 3 actions in a manner that justice is not only done but also seen to be done. And if the judiciary falters in holding its own accountable, the Parliament must institute a new mechanism for judicial accountability. To restate the obvious, the rule of law must equally apply to all citizens without exception, including judges and generals.

Babar Sattar, Esq.

Email: sattar@post.harvard.edu

Jalaluddin Rumi

The stirring and passionate depiction of Umeed-e-Sahar by the “Laal” band is an apt portrayal of what Rumi was probably suggesting and what our nation learnt on March 15: miracles do happen if enough ordinary people wish for them to happen and take affirmative steps top make them happen. For almost two years we have been constantly reminded that the rule of law movement and the black-coats revolution is bound to fail because it is rooted in idealism and mundane rhetoric and falls foul of our “ground realities.” The legal, political, social and moral consensus around the righteousness of the principle supporting the rule of law movement had been unmistakable for a while. And yet there was a widely shared sense of despondency all around that justice will not prevail and right will not triumph because the “ground reality” is that our corrupt and moth-eaten social, political and institutional structures will never allow principles to win and the fallen to rise. March 16 needs to be eulogised because the collective conscience of this nation rose up to enforce the right, carved a new “ground reality” and made the impossible possible.

In tracing the history of this movement, it might be fitting to acknowledge some contributions without which March 16 might not have become such a day of redemption. At a time when the general decided to annex the judicial branch of the government, it was headed by a chief justice who refused to be intimidated and showed unrelenting courage to stand up and defend the constitutional authority and independence conferred on the judiciary and the office of the chief justice. At such critical juncture in our constitutional history the lawyers were fortunate to be lead by giants such as Aitzaz Ahsan, Munir Malik, Tariq Mehmood, Ali Ahmad Kurd, Rasheed Rizvi and Anwar Kamal, to name a few. Without their individual contribution the ethic of integrity might not have been able to trump the prevailing ethic of success symbolised by the Sharifuddin Pirzadas and Malik Qayyums.

Complete legal consensus around the illegitimacy of the Nov 3 acts would not have emerged had the overwhelming majority of the superior court judges not refused to swear an oath to abide by the General’s diktat. The movement would not have been blessed with an extended lease of life was it not for the extremely organised and dedicated members of the civil society who continued to brave police batons, tear gas and state intimidation. The message of the rule of law movement would not have resonated with ordinary citizens had the media not (i) articulated its objects appropriately, (ii) exposed the hypocrisy of perpetrators of injustice, (iii) depicted the shocking use of state law-enforcement machinery to silence those seeking justice and (iv) remained steadfast in educating the public with regard to its rights.

And yet, the lawyers, the media and the civil society might have been reduced to being a pressure group had political parties not backed the movement and rallied behind its cause. The unrelenting support of Imran Khan and Qazi Hussain Ahmed throughout (as well as that of nationalist leaders from minority provinces such as Mr Palijo and Mr Achakzai), even at the cost of sacrificing immediate political goals, deserves generous appreciation. The manner in which the diehard party workers of TI and JI engaged the trigger-happy Punjab police at GPO Chawk on March 15 was a clarion call to all concerned citizens to stand up for rule of law and against oppression. And, of course, the mass public rousing that we witnessed over the last two weeks would simply not have been possible had it not been for the unequivocal and principled stance of Nawaz Sharif and Shahbaz Sharif on the issue of restoration. The gallantry Mr Sharif exhibited in leading from the front on March 15, despite a genuine threat to his personal security, was a manifestation of our changing political culture and that PML-N leadership has a finger on the public pulse.

The resignations tendered by Sherry Rehman and Raza Rabbani are further proof of our changing political ethos. In an unfortunate land where the “system” takes all blame for human failure, malice and dishonesty, two of the most talented and respected members of the cabinet established that partisan politics does not necessarily take precedence over personal integrity. And then some of us have also been signing praises of the army chief as a “defender of democracy.” Maybe the nation does owe him gratitude for not following in the footsteps of his predecessor, continuing to abide by the law and not using political discord as an excuse to usurp state authority. But, then, should our army chief and other honourable generals not get offended at the praise being lavished upon them? After all, a nation grateful to its generals for not transgressing the Constitution and crowning themselves saviours at the first opportunity they can find cannot possibly be conceived as a flattering image by thoughtful soldiers.

The principled restoration of the Nov 2 judiciary is the first explicit acknowledgment by our elected political government that the actions of Nov 3, 2007, were illegitimate and unconstitutional, and a prerequisite to begin to undo the damage inflicted upon our constitutional structure by the general. Restitution of independent judges will go a long way in restoring the credibility and image of the court and mark our nation’s unflinching commitment to the principle of judicial independence and separation from the executive. By returning Chief Justice Iftikhar Chaudhry and other deposed judges to their rightful constitutional offices, we have also upheld a cardinal principle of equity: wherever there is a wrong, there is a remedy. But far more important than these identifiable achievements of the long-march is its intangible reward: the sense of empowerment garnered by citizens of Pakistan due to the realisation of the paramount objective of their indigenous movement.

The resolution of the judicial crisis through a popular mass movement is no mean collective achievement and we have every right to take pride in. However, it has repeatedly been argued in this space that restoration of individual judges must not be conceived as the be-all and end-all of judicial independence. This was meant to be the crucial first step that would mark the initiation of a long, through and arduous journey to strengthen and reform our institutional structures with a focus on providing ordinary citizens affordable, speedy and easy access to justice. And to that end, we have merely removed the roadblocks and the pursuit of our reformist agenda has not even begun. Let us remind ourselves that while the principled restoration of the judges has provided a much-required impetus to the spirit of our nation, we had experienced similar buoyancy back on Feb 18, 2008, with the revival of democracy in Pakistan. The gloom that has ensued since then is partly due the high hopes vested by the nation in the ability of a representative government to deliver.

The expectations from an independent judiciary led by Chief Justice Chaudhry are now sky-high. While we have a right to demand that the judiciary that we all struggled for must measure up to the needs of a fair and functional justice system, we must also understand that the mandate of the judiciary is limited to interpreting the law and dispensing justice, and not running the system of governance, which falls within the scope of the executive, subject to parliamentary oversight. Thus, while the court can entertain the writ of habeas corpus and demand that missing citizens be recovered and produced before the court, it cannot take upon itself to fix the cost of utilities. Further, the judicature will need to indulge in some overdue self-cleansing and then initiate reconciliation amongst its members to enable the institution to speak with one voice. But the guiding principle for such internal housekeeping must not be to settle scores, but to ensure that the vanguards of the Constitution come to be perceived as neutral arbiters of justice.

Now that the lawyers have succeeded it’s time to go back to work and focus on what lawyers traditionally do: use their intellectual ability to fight for people’s rights in court. One ancillary effect of their two-year movement has been that a tremendous amount of caseload has piled up. It is now time to shun agitation and focus on pending caseload and producing ideas for institutional reform of the justice system.

This nation has been extremely gracious to the Zardari-led PPP and has made a conscious effort not to rub the party’s face in dirt. The ruling regime must also not begrudge the implementation of a consensual public demand, even if the final impetus came from PML-N. The restoration of constitutional judges need not be a divisive event for our nation. It has provided a whole new opportunity and environment for the PPP and PML-N to work together in addressing the multifarious problems afflicting us. Let us not fritter it away.

Babar Sattar

Email: sattar@post.harvard.edu

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.

My dear countrymen Assalam-o-Alaikum,

I am speaking to you at a time when our country is standing at a critical moment. No country can make progress without political tolerance and the PPP and lawyers have been together in struggle for upholding democracy in Pakistan. Shaheed Mohtrama Benazir Bhutto actively participated in the struggle of restoration of judiciary was launched by lawyers. Benazir Bhutto wanted free judiciary and supremacy of the constitution.

The lawyers’ movement for restoring of judges was their democratic right. The PPP was shoulder to shoulder with the lawyers in the cause for the independent judiciary.

The slain PPP leader Benazir Bhutto also wanted to reinstate the deposed chief justice.

I have taken all his coalition partners and the President into confidence about the reinstatement of the deposed chief justice once the current chief justice retires on March 21.

The deposed chief justice Iftikhar Muhammad Chaudhry will assume charges on March 21.

Benazir Bhutto wanted free judiciary and supremacy of the constitution.

I order all the provincial government to abolish Section 144 at once.

After consultations with all political forces of the country and President Asif Ali Zardari, we have decided to restore all deposed judges including Iftikhar Muhammad Chaudhry as Chief Justice of Pakistan who will assume charge on March 21. The current Chief Justice Abdul Hameed Dogar retires on March 21. I urge all the political forces and lawyers to work for the solidarity and welfare of the country.

Pakistan Paindabad.

Full name of person(s) arrested, detained or place under house arrest;
Place;
Date;
Status;
Where are/was the person(s) detained?;
What law and/or offense has the person(s) been charged and/or detained under;
Affiliation (lawyers, political party or civil society member); and
any other documentary evidence, which may be in your possession.

The information will assist U.S. lawyers effectively petition the U.S. Government on behalf of the person(s) arrested, detained or placed under house arrest. Information can be sent to r.a.hancock@gmail.com.

These deaths constitute the first civilian casualties in Pakistan since Obama took office on Tuesday.

The ICJ page on the issue is here, and you can download the full report.

*The International Republican Institute is a U.S. government funded organization chaired by presidential contender John McCain.  The full report can be found on IRI’s website.