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.

10:00-11:30 AM
Tuesday, April 15, 2008
2237 Rayburn

The focus of the briefing will be recent promises to restore the constitution and an independent judiciary, what steps are actually being taken by the government, and what obstacles lay ahead. During this period of transition, it is imperative that we examine these pressing issues in Pakistan, a nation that is a friend of the United States and a vital ally in the war on terror.

The distinguished panel consists of:

Ali Ahsan, Attorney and son of Pakistani lawyers’ movement leader Aitzaz Ahsan;

Nadeem Azam, Pakistani lawyer and Professor of Law and Director of the Human Rights Studies Center at the University of Peshawar;

Justice Richard J. Goldstone, Former justice of the Constitutional Court of South Africa, former chief prosecutor of the United Nations International Criminal Tribunals for the former Yugoslavia and Rwanda, and visiting professor at Georgetown University Law Center; and

Maureen Byrnes, Executive Director of Human Rights First (Moderator).

Please contact Samia Elshafie (Samia.Elshafie@mail.house.gov) at 225-3816 with any questions or for additional information.

PJC, LRWC, ALRC and LWB/C repeat the call on the new government of Pakistan to act to ensure:

1. The reinstatement of all judges removed from office by the Provisional Constitution Order No. 1 of 2007, November 3 2007 in accordance with the Murree Declaration; and

2. The rescission of all laws, including amendments to the Constitution of the Islamic Republic of Pakistan (Constitution), purporting to come into force under authority of the Proclamation of Emergency Declaration of November 3, 2007, the Provisional Constitutional Order No. 1 of 2007 and the Oath of Offices (Judges) Order, 2007

3. Withdrawal of charges laid after November 3/07 against lawyers and others for protesting the imposition of martial law including charges of high treason, sabotage, destroying public property and maintenance of public order.

4. Strict adherence by Pakistan officials to laws validly in force prior to November 3, 2007 and to applicable international standards protecting the independence of lawyers and judges including those embodied in the UN Basic Principles on the Role of Lawyers[3]and the Basic Principles on the Independence of the Judiciary.[4]
Background

LRWC, ALRC and LWB/C deplore the death of 11 people in Karachi including the death by burning of 6 people believed to be lawyers. LRWC rejects false accusations against members of the Lawyers Movement and regards all attempts to vilify these lawyers and other social justice activists as a pretext to justify illegal activities: the continuation of the suspension of the Pakistan legal system and extra-legal attacks on and executions of those advocating its return.

Since March 2007 millions of people inspired by thousands of lawyers, have peacefully protested the destruction of the Pakistan legal system by the Musharraf regime and advocated for the restoration of an independent judiciary and the law, properly enacted for a proper constitutional purpose. Pakistan lawyers, Pakistan citizens and lawyers around the world have protested against the March 2007 suspension and house arrest of the Chief Justice of the Pakistan Supreme Court, the arrest and maltreatment of thousands protesting the chief justice’s removal, the Emergency Measures Declaration of November 3, 2007 and suspension of the Constitution, the sacking and detention of judges who refused to conform to the Oath of Offices (Judges) Order 2007 and the arrests of thousands of lawyers and activists, including Pakistan’s most senior lawyers.

The emergency measures imposed on November 3, 2007 by Musharraf were unlawful under the Constitution, failed to meet United Nations standards for states of emergency and violate international standards for non-derogable rights. On November 5, 2007 the High Commissioner of Human Rights Louise Arbour characterized the state of emergency as illegitimate and called on Musharraf to restore the independent judiciary before the election. Instead thousands of lawyers, judges and activists were arrested for peacefully advocating adherence to customary international law and the Constitution and for peacefully protesting the military regime’s suspension of the Constitution, sacking of judges, arrest of thousands of human rights defenders and violations of fundamental human rights and freedoms.

LRWC, ALRC, LWB/C and 16 other NGOs representing thousands of lawyers around the world concluded, in the statement[5] submitted to the UNHRC, that the November 3, 2007 emergency measures were illegal and that all laws created and state actions taken into reliance on the Proclamation of Emergency of November 3, 2007 were enacted and done without legal authority and therefore are null and void, ab initio and must be reversed.

On March 10, 2008 the Pakistan People’s Party (PPP) and the Pakistan Muslim League (N) agreed, inter alia, ” that the deposed judges would be restored, on the position as they were on November 2, 2007, within 30 days of the formation of the federal government through a parliamentary resolution.”[6] Parliament was recalled on March 17, 2008. Prime Minister Gilani unambiguously confirmed this commitment (the Murree Declaration) when he was sworn in on March 24/08. However, it appears that the Parliament of Pakistan is unable to restore the judiciary or the Constitution while Musharraf is President without risking dissolution. Pressure from certain foreign governments seeking a military presence in Pakistan may also be a factor.

Required Action

LRWC, ALRC and LWB/C call on the government of Pakistan to:

o denounce attacks on lawyers and others advocating the restoration of the judiciary and the Constitution; and,

o denounce the attacks that resulted in the deaths of lawyers and other people in Karachi, April 9, 2008; and,

o negotiate with all political parties and with representatives of the Lawyers Movement to reach an agreement on how best to honour the Murree Declaration and to restore and protect an independent judiciary; and,

o prevent further attacks and punish past attacks on lawyers, other rights-defenders and other people in Karachi by:

a) immediately providing effective protection; and,

b) conducting prompt and effective investigations into the deaths of all the people killed in Karachi on April 9, 2008; and,

c) ensuring the accountability of perpetrators including state agents, through proper prosecutions and fair trials and in accordance with the requirements of the UN Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions.

Lawyers Rights Watch Canada (LRWC) is a committee of Canadian lawyers who promote human rights and the rule of law internationally by providing support to lawyers and other human rights defenders in danger because of their advocacy. LRWC is an NGO in Special Consultative Status with the Economic and Social Council of the United Nations (ECOSOC/UN). Other statements on Pakistan: www.lrwc.org/pub1.php

Asian Legal Resource Centre (ALRC) is a Hong Kong-based NGO with General Consultative status with ECOSOC/UN. Founded in 1986 by a prominent group of jurists and human rights activists in Asia, ALRC promotes respect for human rights in the region through the strengthening of institutions of the rule of law, notably the police, prosecution and judiciary. It also seeks to strengthen and encourage positive action on legal and human rights issues by the bar and other legal bodies and personnel, at the local and national levels and to promote rights in the region through advocacy, research and publications, such as Article 2.

CONTACTS:

Lawyers Rights Watch Canada, Gail Davidson www.lrwc.org; lrwc@portal.ca; +1 604 738 0338
Asian Legal Resource Centre Basil Fernando, Executive Director, Tel: +(852) – 2698-6339, alrc@alrc.net; www.alrc.net

[1] This statement is also endorsed by Elise Groulx in her capacity as President of the International Criminal Defence Attorneys Association (ICDAA).

[2] Statement by Lawyers Rights Watch Canada to the Seventh Session of the Human Rights Council regarding unlawful emergency measures in Pakistan, February 20, 2008. Endorsed by: Dutch Lawyers for Lawyers Foundation-L4L, Asian Legal Resource Centre Commission-ALRC, Lawyers Without Borders Canada-LWB/C, International Association of Democratic Lawyers-IADL, Republican Attorneys Association-RAV, Bar Human Rights Committee of England and Wales-BHRC, National Lawyers Guild-NLG, American Association of Jurists-AAJ , Rule of Law Project, Lahore University of Management Sciences-LUMS, International Association of People’s Lawyers-IAPL, National Union of Peoples’ Lawyers-NUPL, Counsels for the Defense of Liberties-CODAL, Front Line-International Foundation for the Protection of Human Rights Defenders, International Criminal Defence Attorneys Association-ICDAA, South Asian Network for Secularism and Democracy-SANSAD, Law Society of Upper Canada-LSUC, Trial Lawyers Association of British Columbia-TLABC.

[3] Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990. www.lrwc.org/documents/Pakistan.LRWC.Statement.to.UNHRC.Mar.08.doc
[4] Adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985.

[5] Supra,note 1.

[6] Murree Declaration, para. 2, http://www.hindu.com/nic/pakistan-murree.htm

The PJC delegation addressed:

a. government representatives from the Department of State and House Committee on Foreign Affairs;

b. bar associations in New York, D.C. (South Asian Bar Association), Philadelphia and the National Lawyers Guild;

c. policy analysts at the U.S. Institute of Peace and Center for Strategic and International Studies;

d. journalists from BBC, NPR, ARY, legal publications, Voice of America, local newspapers and international and Pakistani media;

e. legal academic communities at NYU, Columbia, the University of Pennsylvania, Rutgers, American University Washington College of Law and Brooklyn Law School; and

f. human rights group Amnesty International.

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.