The long march is not about the person of Iftikhar Chaudhry or Nawaz Sharif. It is a march against the status quo and must succeed in order to usher in the much-needed change in the constitutional structure, political culture and social ethos of this country, without which Pakistan will be unable to sustain a moderate society or prosper as a democratic polity. The defiance of Chief Justice Iftikhar Chaudhry on March 9, 2007, only ignited fires of resentment against the ruling elite for sustaining a justice system that denies the ordinary citizen access to justice. He might not have had an irreproachable past, but his perseverance and his dogged resolve to fight an illegal and unconstitutional act has given this country an opportunity to rally behind a cause that promises a better collective future for all of us. Likewise, Nawaz Sharif might be culpable for meting out highhanded treatment to the judiciary during his last stint in power. But how does that
equate the PML-N with the PPP at this time, when the former is standing on the right side of principle seeking to change a fundamental cause of our misfortunes, while the latter has emerged as the intractable obstacle to such change?

This change being sought by the rule of law movement is imperative for five fundamental reasons. One, the Constitution of Pakistan needs to be reverted to its original sustainable form. General Musharraf vandalized the Constitution for a second time on Nov 3, 2007. On that fateful day the General had bestowed on himself the power to single-handedly inscribe changes into our fundamental law, and in exercise of such self-proclaimed power, disbanded the judicature, set-up a new High Court in Islamabad, validated all his illegal actions and gave himself immunity against charges of treason etc. The new Dogar Court that he constituted ‘validated’ his unconstitutional actions in the Tikka Iqbal Mohammed Khan case. While the general’s illegal acts outraged this nation and triggered a chain of events that led to his regime’s demise, this country continues to function under the presumption that his actions of Nov 3 were legal and the changes introduced by him are
a valid part of our Constitution. The Constitution thus needs to be cleansed of the general’s adulterous acts, which cannot happen so long as we continue to live with a Dogar Court complicit in the general’s treacherous scheme.

Two, the constitutional structure of separation of powers and checks and balances needs to be given effect. The fundamental rights and liberties guaranteed to the citizens are never self-implementing. An independent judiciary is the enforcement arm of the Constitution. So long as the judiciary remains subservient to the executive and continues to function as an extension of the ruling elite, one can scribble in all kinds of sensible provisions in the Constitution but they will amount to naught. Without a judiciary that has the ability, resolve and reputation of being a neutral arbiter of justice and conscientiously adjudicates the relationship between the institutions of the state on the one hand and between the citizens and the state on the other in accordance with the letter and spirit of the Constitution, rule of law will not amount to anything more than the rule of the powerful. If we allow the Zardari-led PPP to stuff courts with perfidious quacks
- as obvious from the recent judicial appointments made with the consent and collusion of the Dogar Court – overtime the gap between the law produced by our courts and demands of justice will become so wide that the notion of rule of law in Pakistan will itself become farcical.

Three, we need a constitutional and legal structure that sustains a level-playing field in the political realm. The leaders of the PPP and the PML-N both have tainted pasts, and this nation has not been vying for a return to the kind of corrupt and ineffectual representative governance that these parties punished the country with in the 1990s. The charter of democracy had brought along the hope that our mainstream parties had learnt from their past mistakes, agreed to let bygones be bygones, compete fairly within the political arena, and move forward with a clean slate. The NRO, however, was the first infraction. The PPP leadership got into bed with Musharraf who wiped clean its past sins through an unscrupulous and shameful edict. This left the Sharif’s out in a lurch, with the swords of Damocles hanging over their heads.

The Zadari-led PPP went back to the dirty political games of the 1990s once it decided to abuse the instrument of the law to cut the Sharifs to size by getting them declared ineligible for public office. If the Sharifs have a blemished past, so does Zardari – and one that is much murkier. Probably all our politicos will be rendered ineligible to hold elected public office if we strictly enforce the qualification requirements for such office enshrined in our Constitution. Our nation has thus been willing to give politicians with tainted past another chance, frankly, for want of options (as there is no short-cut to democracy) but with the hope that they will be willing to reform themselves and their sordid ways. Thus, if democracy is to have a chance in this country, we cannot allow one political party to establish a stranglehold over our skewed legal and judicial structures to entrench itself in power and outlaw the opposition.

Four, we need to reform our democracy and system of governance to ensure that the policies and actions of elected representatives reflect popular public opinion. Khaki saviours still have a controlling role in Pakistan in this day and age because there isn’t much distinction between the style and system of governance that subsists under military dictatorships as opposed to that practiced by civilian autocracies voted in during democratic times. The rule of law movement has sustained itself for two gruelling years and the ideal of constitutionalism that it is struggling for resonates with ordinary people. All opinion polls conducted in Pakistan since Nov 3, 2007, establish that an overwhelming majority of Pakistanis supports the restitution of the Nov 3 judiciary. And yet we have a popularly elected party in government that has willingly inherited the abhorrent policies and tactics of the dictator it replaced and refuses to give effect to the unmistakable
will of the nation it claims to represent. If the growing gap between the popular will of the nation and the narrow self-promotional policies of our ruling elite is not bridged, the continuation of civilian autocracy in democratic garb will end up discrediting the desire for democracy itself in this country.

And five, we need to re-instil morality and ethics in public life. Over the last year we have witnessed a free fall in the standards of morality exhibited by holders of public office. To err is human, but to gloat over deliberate wrongdoing and use deceit as a favoured political tactic cannot be acceptable. A representative government that introduces a code of conduct for public life that celebrates and rewards indiscretions, corruption and malice cannot be a harbinger of hope for the future of democracy or rule of law in this country. If we accept Mr Zardari’s broken promises, his refusal to honour binding commitments, and his choice of lackeys smeared in scandal for elevation to revered public offices, it will not be too long before all sensible distinctions between right and wrong in public life get wiped away.

Now we are essentially being told that our perverted ‘ground realities’ have become so entrenched that in order to preserve order and peace in the society we should compromise the principle underlying the rule of law movement instead of changing the ugly reality. This must not happen. If we sacrifice principle on the altar of expediency at this critical juncture, we might not get another opportunity to redeem the soul and spirit of this nation through a peaceful mass movement led by the educated middle class of this country.

Email: sattar@post.harvard.edu

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Babar Sattar
+ 92-321-5171197
sattar@post.harvard.edu

Their detention, since November 3, 2007, is in violation of Pakistani and International law.
The detention of the Chief Justice is in violation of basic due process principles embodied in Articles 9 and 10 of the Pakistani Constitution. As highlighted in a recent Lahore University of Management Sciences (LUMS) Briefing Paper:

The government has never issued a detention order for the Chief Justice. In the absence of a valid detention order, any detained person must be produced before a magistrate within 24 hours of his or her arrest.¹ The detention of the Chief Justice and his family is unconstitutional because the government has deprived the family of liberty without acting “in accordance with law.”²

The detention orders for Ahsan, Kurd and Mehmood are invalid on two grounds: failure to allege specific facts justifying detention and vagueness.

For detention orders to be valid under the Maintenance of Public Order Ordinance of 1960, they must allege specific facts justifying the conclusion that the detainee is a threat to “the maintenance of public order.”³ Instead of alleging specific facts, the orders contain conclusory statements claiming, for example, that the detainees are involved in activities challenging the writ of the government, have designs to create law and order situations, and will make inflammatory speeches that will promote hatred. A detention order cannot stand on such conclusory allegations without specific facts to support them.

Furthermore, under Pakistani law, detention orders must “not be vague and indefinite” so as to allows a detainee “to make representation against his detention…”⁴ The detention orders against Ahsan, Kurd and Mehmood fail to cite any specific acts by the detainees or to adduce any evidence justifying their detention. As such, the detention orders-and the physical detention-of Ahsan, Kurd, and Mehmood are unconstitutional.
The detention of Chaudry, Ahsan, Kurd and Mehmood are also in contravention of customary international law as established by The Universal Declaration of Human Rights (UDHR). The UDHR guarantees that “[n]o one shall be subjected to arbitrary arrest [or] detention.”⁵ The arrest and detention of Chaudry, Ahsan, Kurd and Mehmood are arbitrary under, and thus violative of, the UDHR because they are in clear violation of Pakistani law
Pakistan Justice Coalition echoes LUMS’ call for the government of Pakistan to end its policy of arbitrary arrest and detention and for the government to respect the fundamental rights of free expression, peaceful assembly and movement.
Pakistan Justice Coalition further calls on international human rights organizations to declare the detainees political prisoners and to vehemently call for their release.

The report is co-authored by members of a delegation from the United States National Lawyers Guild and is the result of a ten-day fact-finding visit to Pakistan to assess the status of the judiciary and the prospect for fair elections in light of recent attacks on judicial independence. The report criticizes U.S. foreign policy in Pakistan, concluding that U.S. support for President Musharaff and its failure to demand restoration of the deposed judges will have long-term negative impacts on the judiciary and the rule of law in Pakistan and damage regional safety and security.

The report also concludes that the upcoming elections are unlikely to meet international standards due to widespread systemic and structural problems, including pre-poll abuses and the failure to enforce existing election regulations. Additionally, the report addresses press freedom in Pakistan, noting that severe restrictions faced by all media, in particular the Urdu-language press, constitute a “serious threat” to Pakistan’s democratic development.

“The independence of the judiciary is a cornerstone of a functioning democracy. The United States’ support for a dictator and its failure to demand the reinstatement of the deposed judges is critically damaging demcratic development and threatening regional safety and security,” stated Rule of Law Project Director Devin Theriot-Orr.

David Gespass, the Vice President of the National Lawyers Guild and the leader of the delegation, stated that “We intend to share the report with the American people and place it before our elected representatives to help effect a drastic change in U.S. policy towards Pakistan that emphasizes human rights and democracy as the only real means of reducing the threat of terrorism.”

One respondent, Justice Azmat Saeed of the Lahore High Court, who refused to take the PCO oath, stated that Musharraf said to the U.S.A., I can’t fight the war on terrorism with a free press and an independent judiciary. But you cannot fight terrorism with state terrorism.

Pakistan has become a state where there are suicide bombings going on, where no one is safe. We have now lost more Pakistani soldiers than Americans have lost in Iraq, noted Imran Khan, leader of the Tehreek-e-Insaaf party. If you assess the policy now, it has been a disaster for the U.S., and it’s now become an even bigger disaster for Pakistan. And there’s no end in sight. Radicalism and extremism are growing by the day. This is now a monster that could actually destroy our country, concluded Khan.

Syed Mudasser Ameer, a barrister and a member of the executive committee of the Peshawar High Court Bar Association Action Committee, expressed a common view that when we used to talk about America, it was just another word for freedom. But the United States continued support for Musharraf has changed his views. Now, we say it would be better if we were still ruled by Britain, because there would still be rule of law, stated Ameer.

Professors Roger Normand and Justice (ret’d) Jawwad Khawaja of LUMS established the Rule of Law Project to serve as an academic clearinghouse for documentation and research regarding constitutionalism and the rule of law in Pakistan. The Project is developing a comprehensive report on the impacts of the PCO and seeking information from all lawyers and members of civil society who were arrested, detained, or mistreated following the PCO.