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.

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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.

The events in Pakistan since the fall of 2007 sparked a response from the legal profession worldwide. In particular, images of Pakistani lawyers being arrested as they were peacefully protesting to uphold principles of the rule of law in their country, mobilized the ABA to respond. The ABA issued statements, organized a march in solidarity with Pakistani colleagues, and presented a petition to the government of Pakistan calling for the restoration of the Constitution, reinstatement of deposed Supreme Court justices, and the release of lawyers and civil leaders who had been wrongfully jailed. In recognition of their tremendous efforts, the ABA gave the lawyers and judges of Pakistan the Rule of Law Initiative Award in August 2008.

With the end of military rule, the installation of a democratic government and the restoration of judges, will the lawyers’ movement fix the judicial system? Will they be able to address the ailments that are hampering the process of the delivery of justice? Will they examine how judges are appointed, how cases are fixed, how much money is to be paid to the staff at every step, why abnormal delays take place, and whether the poor can afford to seek justice?

We will explore the public purpose of a constitution and the linkages between a feudal landholding political culture and access to justice for Pakistan’s 160 million people. Civil society estimates of the landholding scenario in Pakistan reveal that 0.24% of the landholding population controls the majority of the agricultural land. Will the lawyers address the overbearing influence of the feudal families on the executive, judicial, and legislative apparatus that neglects the interests of the great majority (93%) of poor farmers?

The event will take place on September 25th, 11:00 – 12:30
Sponsoring Entities:
· Asia Pacific Committee of the ABA Section of International Law
· ABA Center for Human Rights
· ABA-UNDP International Legal Resource Center

Program Chairs:
· Brigitte R. Gambini, Paris, France
· Mohammad A. Syed (”Mo”), King and Ballow, Nashville, TN

Introductory Remarks: Aaron Schildhaus, Chair, Section of International Law, American Bar Association
Moderator: Catherine M. Doll, Debevoise & Plimpton LLP, New York, NY

Speakers:
· Ms. Faryal Jooma, lawyer and partner at Jooma and Soomro, Karachi, Pakistan
· Barrister Aitzaz Ahsan, President of the Supreme Court Bar Association, Lahore, Pakistan
· Mr. Imran Khan, Chairman of the Pakistan Movement for Justice, Lahore, Pakistan (former international cricketer)
· Professor Roy Prosterman, Founder and Chairman of the Rural Development Institute (RDI), Seattle, Washington

During his horrid rule the General denied justice to citizens of Pakistan, with a vengeance: politicians were hauled up indiscriminately after his coup in 1999 and were assaulted and humiliated purposefully to create a critical mass for the Q League; Akbar Bugti was killed in cold blood; the chief justice and a majority of senior judges were removed illegally and locked up in their houses along with their families; lawyers fighting for rule of law were incarcerated and intimidated no end; the media was taken off-air illegally and plain-speaking journalists were blacklisted; the misguided youth of Lal Masjid were initially emboldened and then mercilessly executed; Aafia Siddiqui and hundreds of others were kidnapped and are still under illegal detention; and civilians in our tribal areas have been turned into cannon-fodder in the misconceived war against terror. This is only to name a few broad categories.

But being meted out justice is a fundamental human right. We must treat Musharraf fairly, strictly in accordance with the law and the mandated due process. The question of his future is now agitating the consciousness of our nation. Now that he has resigned instead of facing impeachment, should he be punished for his unconstitutional acts and gross misconduct in exercise of state power? Would holding him accountable for his deeds amount to creating a conflict between the past and the present that could possibly compromise the future of this country? Is it time to move on and let bygones be bygones? Hearing arguments of Musharraf proponents or detractors of the deposed judges, why does one get the sense that our entire nation and Pakistan’s state apparatus has one collective brain and if that is focused on role of the president or need for an independent judiciary, the “common man” will remain poor and hungry? There is no doubt that it is time for
 Pakistan to move forward. But is it correct to assume that holding Musharraf accountable for his actions and misdeeds amounts to remaining mired in the past?

There are multiple theories that explain the need for accountability and justify punishment. Foremost among them are concepts such as retribution and deterrence. Retribution is backward-looking and deterrence is forward-looking, and punishment qualifies as part of the justice system for being a combination of backward- and forward-looking elements. The fundamental contract between the citizen and the state is based on the premise that each of them has certain rights and responsibilities. Being treated in accordance with the law is an inalienable right of the citizen and not discriminating between the citizens is a responsibility of the state. So, then, what is the legal argument that could justify offering Musharraf a safe passage or freedom from liability? If the actions or inactions of other citizens have legal consequences, why should the General be treated any different? The notion of rule of law cannot coexist with the impunity that our military
 dictators have enjoyed all along.

Our Western friends and their emissaries are also pushing the safe exit argument forcefully. If nations have interests and not personal loyalties, why have Anne Patterson and Mark Lyle Grant been frantically negotiating with key players in Pakistan, overzealous to ensure a “dignified” exit for Musharraf? It is not just about the person of Musharraf, but about coming to the rescue of a loyal autocrat willing to do the bidding of the US against the popular wishes of his people. The US needs to establish on record for future purposes that loyalty is rewarded and that the US secures the future of an ally who sticks his neck out to promote American interests. And herein lies a lesson to be learnt by us. We must also send a message to our foreign “allies” that propping up dictators at the expense of state institutions and democracy for instant results will not work in Pakistan anymore.

We also need to send out a message to our prospective “saviours” that, notwithstanding the unflinching support offered by unrepresentative forces at home and abroad, violating the Constitution and the law will have unpleasant consequences. This debate is not about personalities. We have learnt the same fundamental lesson from all dictatorships: military intervention is the problem and not the solution to Pakistan’s myriad ills. Many in Pakistan celebrated the arrival of Musharraf in 1999 and they are celebrating his exit even more fervently. But the story of the removal and return of the PPP and PML-N governments in the 1990s or the departure and return of Benazir Bhutto and Nawaz Sharif after years in exile is no different.

In a country with innumerable problems that are not amenable to quick fixes, a change of façade brings new hope and is thus welcomed. But we cannot afford to keep musical chairs between dictatorship and controlled democracy going. We need an uninterrupted democratic era. However, it is only natural for present miseries to fade the memory of past woes. The lessons drummed in by Musharraf’s recklessness might also be lost soon and that is why it is imperative to create institutional structures that prevent praetorianism from blossoming in future. Three things sustained the Musharraf regime: his people, his policies and the warped non-consensual manner in which the policies were contrived. Musharraf’s exit has begun to unravel the first element of the regime – the people who sustained the regime. His policies and policymaking procedures must now also be swiftly revamped.

The biggest damage that Musharraf did to Pakistan was on Nov 3, when he attempted to decimate the Constitution and the promise of an independent judiciary. Now that the perpetrator is out of the way, the PPP-led coalition must lose no time to restore the deposed judges. The memory of the suffering caused by the Musharraf regime will fade away soon, and it will take time for the fruits of democracy to trickle down to ordinary people. In the interim phase a strong and independent judiciary willing to uphold and defend the Constitution will be the real structural impediment to military adventurism. Further, even from the PPP’s perspective, the right time for restoration is now. Twice before the PPP leadership managed to paint itself in a corner in such a manner that restoring the judges would have offered the ruling party no political mileage.

Had Prime Minister Gilani restored the judges when he announced their release from illegal detention, the PPP would have received a lion’s share of the credit for restoration despite not making it an electoral issue. By flouting that opportunity and later reneging on the commitment made in the Murree Declaration, the PPP attracted opprobrium from across the country, even from friends of the party. However, today is a new day. Asif Zardari has successfully spearheaded a movement that has led to Musharraf’s ouster without confrontation. If he follows through by restoring the judges without further delay, the PPP’s preferred strategy to reverse the actions of Nov 3 will stand vindicated. Having been given a third opportunity, the PPP leadership must not squander it this time.

To mark the change that democracy has ushered in, the PPP-led coalition must urgently initiate a parliamentary debate on Pakistan’s security situation in the tribal areas. Democracy has never been flaunted as the most efficient system of government, only the safest. And the safety feature is a product of consensus. Irrespective of the substantive decisions reached in Parliament, to the extent that we get the process right we will have taken a giant step towards resolving the twin issues of insurgency and terrorism.

Let us waste no breath over Musharraf’s legacy. But the treatment we mete out to him will have consequences for the rule of law and constitutionalism in Pakistan, our civil-military imbalance, as well as the lingering ability of foreign actors to dwarf our sovereignty and political autonomy. While closing the Musharraf chapter let us also remember that the ball is now in the court of politicians. Let this not be another brief turn that ends up discrediting democracy as a system unfit for the genius of Pakistanis. From here on it is not about Musharraf anymore. It is about the legacy and the future of the PPP and the PML-N.

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

What good would exposing its own impotence do to the PPP government is the obvious question. There are two possible explanations. One, the prime minister was on tour this week to beseech the US to support the PPP-led government. For the US, the alternative to partnering with the PPP government in the war on terror is to continue to work directly with the military – after all the one Pakistani institution that the US has traditionally invested in is the Pakistani Army. Further, there was widespread expectation that during the prime minister’s US trip American officials would share with him evidence of the ISI’s covert support for the Taliban. The PPP government’s failed attempt to change the reporting line of the ISI clearly establishes that our premier intelligence agency isn’t squarely within the control of the civilian government.

At the expense of some embarrassment and despite the depiction of weakness, the prime minister would thus have been able to argue that the PPP government should not be held accountable by the US for the actions of an agency that fell within the province of the military. Given that the transition to democratic rule is still in its infancy, the US should pressure the military to clean up the ISI and allow it to be placed under civilian control, the prime minister could argue. And two, for purposes of domestic consumption, the ISI decision and its reversal highlights a reality that goes largely unnoticed when the face of the government is civilian: the military in Pakistan is still all-powerful and its interference in politics and governance is disabling the PPP government from pursuing popular demands like impeaching General Musharraf and removing his coterie from the Establishment.

Further, by reversing the decision on the military’s insistence, Mr Zardari would like to believe that he has won himself a bargaining chip in his negotiations with the military over the rest of his wish list. And Mr Zardari is adept at scheming of this sort. For example, one of the first decisions that the PPP government took in its early days was appointing Dr Shoaib Suddle as the IG of Sindh Police. This was done despite the fact that PPP had decided to give a shot to forming an alliance with the MQM and with full knowledge that the MQM would go berserk over Dr Suddle’s appointment as IGP. In the PPP-MQM negotiations over forming the government in Sindh, Mr Zardari effectively used the appointment and its reversal as leverage. Once the purpose was achieved, Dr Suddle was quickly appointed DG of the Intelligence Bureau.

Call it smart negotiation skills or talent in conniving, Pakistan’s foremost misfortune at the moment is that scheming minions are now masquerading as leaders. Can our wheeling-dealing politicians be cured of their propensity and preference for crooked underhand deals? What are the compulsions of power that prevent the Zardari-led PPP from governing this country in an upright and principled manner?

Probably never before has a regime exterminated hope for a better future from a land as swiftly as the PPP-led government has done in Pakistan over the last couple of month. This nation is glum not merely because subsistence is posing a challenge to a majority, but because people have no faith in the intentions of the PPP-led government to change things for the better. Pakistan is confronted with serious challenges and it needs bold decision-makers, and not plotters.

Take the ISI decision for example. Our intelligence setup has transformed itself into a monstrosity that needs urgent reform and civilian supervision. There is a gaping hole between the legal structure and reporting line of the ISI and the practice of the agency. There is no principled reason or legal basis for the ISI to have a direct or dotted reporting line to the army chief. The ISI falls under the effective control of the army because there is an unwritten rule that it will be headed by a serving general, who then reports to the army chief. Also the ISI’s work relates to defence and security policymaking that the military treats as its exclusive sphere. The practice thus contradicts the law, according to which the ISI falls under the control of the prime minister.

Further, the rules of business empower the prime minister to change the reporting line of the ISI and place it under the control of the Interior Division. But the legality of a decision is one thing and its merits quite another. Had the PPP been serious about intelligence reform, it would pursue a three-pronged approach: a. ensure that our legal framework enables our intelligence agencies to perform their functions effectively, and the agencies, in turn, do not overstep their legal mandate; b. revamp the structure and reporting line of the agencies to strengthen their internal system of checks and balances and make them accountable to the civilian executive and the parliament; and c. facilitate greater coordination and information sharing between the various state actors involved in decision-making, so that intelligence can be used as an effective policy tool.

How would the concerns related to the ISI – including that it is out of government control and running amok – be addressed by subjecting it to Rehman Malik’s supervision? To say that our security czar is a man of some notoriety is probably an understatement. Thus, even if placing the ISI under the control of a ministry was the panacea for all its ills, the choice of Rehman Malik for the job was certain to evoke the reaction that it did. It is true that there is an amount of crookedness intrinsic to politics the world over. But the Zardari-led PPP has introduced double-speak and scheming to the affairs of the state in a manner that has deprived the government of all credibility.

Mr Zardari signed the Murree Declaration and later reneged on his promise to restore the judges. While the PPP still claims to be committed to restoring the judges through its ignominious constitutional package, Farooq Naek is leaving no stone unturned to sabotage the lawyers’ movement and lure deposed judges to be “reappointed” to their Nov 3 seniority. Privately even the PPP leaders acknowledge that Mr Zardari has no intention of seeing Chief Justice Iftikhar Chaudhary return to his mantle.

The approach to the General’s impeachment is no different. Between privately alluding to the fact that the army won’t allow Musharraf’s removal, and publicly stating the decision to impeach him has been reached “in principle,” the PPP’s policy towards the General couldn’t be more equivocal. Similarly, the description of the PPP’s policy towards the war raging in the tribal areas vacillates, depending on the audience.

Can a country remain hopeful about its future if its citizens start to disbelieve everything they are told by their government? Salvaging the dismal situation and getting back on track might still be possible for the PPP government, but only if it wakes up to the realisation that bold and candid decision-making, together with effective governance, will help sustain its rule, and not its existing scheming ways. If the Zardari-led PPP won’t restore the judges or stamp out Musharraf and his cronies, it must stop blowing sand into the nation’s eyes and come clean. What is worse than a bad policy is the PPP’s present policy of measured ambivalence. While the skies are not about to cave into Pakistan (contrary to what our “controlled democracy” enthusiasts would have us believe) the coterie of ruling politicians is certainly making it harder to defend the need and viability of democracy in Pakistan.

Email: sattar@post.harvard.edu

The lawyers will be speaking at a number of law schools, including NYU, Columbia and Rutgers, and will be the guests of honor at the mid-Atlantic conference of the National Lawyers Guild in Philadelphia. Following the conference, they will travel to Washington D.C. to address policy makers regarding the impacts of current U.S. policy in Pakistan.

“We are pleased to be able to host our inspirational Pakistani colleagues and to honor the achievements of lawyers’ movement in promoting justice and the rule of law,” stated Pakistani Justice Coalition co-chair Ryan Hancock, who recently returned from a 10-day fact-finding visit to Pakistan.

The lawyers have been at the forefront of the lawyers’ movement that arose following the suspension of Chief Justice Iftikhar Muhammad Chaudhry in March 2007. Following the November 3, 2007 coup, in which then-General Pervez Musharraf deposed more than half of the sitting appellate judges in Pakistan, lawyers again took to the streets and hundreds were imprisoned. Biographies of the lawyers are included below.

“This speaking tour will provide an opportunity for lawyers, law students, judges and policy makers in the United States to witness the passion of the Pakistani lawyers’ movement,” stated Rule of Law Project Director Devin Theriot-Orr.

While it is unclear what role the government has played in the Youtube ban, allegations are stirring that the ban is in response to videos of election rigging that have recently surfaced. Some sources report that the ban has come directly from the Pakistan Telecommunication Authority, though this report has yet to be verified. The source references an appeal from Micronet Broadband for users to write to Youtube and request that the “offending” videos be removed.

The videos [linked below] depict election officials distributing multiple ballots to each MQM party member—all verified with a single individual’s fingerprint. MQM is a Sindhi party and part of President Musharaff’s dwindling support base.A Youtube ban only adds to concerns about significant restraints on press freedom, imposed in the wake of the November 3 declaration of emergency rule, that have yet to be lifted.

• Evidence of Vote Rigging Video

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.