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.

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.

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

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

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.

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.

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.