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

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.

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.