In an effort to subvert the Long March, the Pakistani Government has passed emergency legislation to ban democratic dissent, issued detention orders for leaders of the lawyers’ movement and preemptively arrested several hundred opposition political party members and lawyers. Following the imposition of Section 144 of the Criminal Procedure Code, persons may be detained up to three months without charge for asserting their constitutional right to free speech and political assembly.

The ROLI demands the immediate release of all persons arrested and/or placed under house arrest, an end to all preemptive house raids and arrests and the withdrawal of all detention orders issued for the leaders of the lawyers’ movement. Further, the ROLI demands the withdrawal of Section 144 and all other restrictions, which unconstitutionally prohibit free speech and political assembly.

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The Rule of Law Institute (ROLI) aims to defend constitutional democracy wherever around the globe its components are threatened. Democratic societies must respect — and ROLI will promote — principles of separated & balanced powers among government authorities, judicial independence, free and open media, and individual rights consistent with international norms. ROLI also promotes economic opportunity for all and universal access to basic needs including shelter, food, health care and education.

Our organization takes particular interest in countries where the international community has inhibited these principles. ROLI addresses each issue in a variety of ways, including: policy and legal analysis, private diplomacy, investigative & fact-finding delegations, and public education efforts.

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

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

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

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

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

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

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

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

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

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

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

Email: sattar@post.harvard.edu

Law minister Farooq Naek claims that he has single-handedly drawn up this draft bill under Asif Zardari’s guidance. His assertion must be true for the bill is ambiguous and shoddily drafted. But poor draftsmanship and lack of constitutional prudence is the least of our concerns at the moment. This draft bill is not just ambiguous, but malicious for (i) it indemnifies the Nov 3 actions of the general and (ii) if passed, it would mutilate the basic structure of our constitution by turning the judicial branch into an extension of the executive for all times to come. The PPP has stated that this bill is not ’sacrosanct’ and will be subject to change in view of comments received from coalition partners and the public. Nevertheless, as an embodiment of the PPP’s base position on (a) the treatment to be meted out to dictators and usurpers, (b) the desirable form of ‘judicial independence’, (c) the preferred balance of power between the pillars of the state, and (d) acceptable schism between words and actions, this draft bill is shocking.

Let us recap the issues in question. The legal fraternity has been crying hoarse that the choice of constitutional amendment as a ‘modality’ to undo the mess created by the general will, by implication, amount to accepting his actions as legal and underwriting the assumption that the constitution can be amended through the barrel of a gun. An illegal order is simply void and doesn’t need to be reversed through law making. Setting such a precedent could come back to bite us in the future just like the judicially manufactured ‘doctrine of necessity’ continues to haunt us today. But this concern is about future dictators obligating democratic forces to manufacture a two-thirds majority in parliament to bypass their edicts. Let us turn to the present. The PPP has tried to be cute about the indemnity issue by not addressing it directly in the draft bill, while imbedding a legal cover for the general’s actions in the language of the proposed Article 270CC that talks about restoration of the superior court judges.

Article 270CC states that “notwithstanding anything contained in any provision of the constitution, the Oath of Judges Order 2007, the High Court Judges Order 2007, the Supreme Court Judges Order 2007 and any other law for the time being in force or judgment of any court including a high court and the Supreme Court, the judges of Supreme Court and high courts including the chief justice of Supreme Court and chief justices of high courts who had ceased to continue to hold office in pursuance of the Oath of Judges Order, 2007, dated the 3rd day of November, 2007, shall stand reinstated/restored to the position and seniority they were holding on the 2nd day of November, 2007.” The language of this article assumes the legality of the Oath of Judges Order, 2007, and affirms that the deposed judges had ceased to hold judicial office, before creating a constitutional carve-out or exception to restore them.

Even if a constitutional amendment was the PPP’s preferred route to restoration, to pre-empt a stay order from the Dogar court and avoid legal confusion as claimed by the PPP, the language of the restoration article could have stated that the general’s actions of Nov 3 — including the forced removal and illegal detention of judges — were illegal, and notwithstanding Article 6, the PCO judges’ initial oath of office under Articles 178 and 194 of the constitution and the Supreme Court order of Nov 3 (rendered by the full court headed by Chief Justice Iftikhar Mohammad Chaudhry declaring the general’s acts of Nov 3 as unconstitutional), the judges who swore an oath under the general’s PCO and those appointed after Nov 3 will be retained. Such a construction of the restoration clause would acknowledge the illegality of the general’s actions and the judges who chose to swear by him, while restoring the deposed judges and also retaining the PCO judges (that the PPP wishes to do for questionable reasons). What it would not do is grant general indemnity to a dictator’s actions by assuming their legality.

More shocking than the indemnity being granted to the general is PPP’s proposed model of judicial independence. The draft bill proposes new procedures to appoint and remove judges. The proposed Articles 177A and 193A provide for the creation of a commission comprising members of the judiciary and also including the law minister to make judicial nominations. The prime minister would be provided two names for each vacant position and he would elect one nominee and forward his/her name to a joint parliamentary committee, comprising members of the treasury and the opposition, for confirmation. This process vests in a parliamentary committee the right to debate and confirm judicial appointments and is an improvement over the previous opaque system despite the fact that it wrests away the judiciary’s sway over judicial appointments.

The mechanism for recruiting judges, while important in terms of electing the right people to serve the system of justice, only has a small part to play in determining the independence of a judge once appointed. It is the security of tenure and protections against arbitrary removal that fortify judicial independence and empower a judge to act without considerations of fear or favour. And it is this crucial security that the draft bill threatens to take away from the judicial branch. The new Article 209 proposes to disband the Supreme Judicial Council (comprising the chief justice of Pakistan, two senior most judges of the Supreme Court and the two chief justices of high courts) that is authorized to investigate charges of judicial misconduct and remove judges accordingly. This council is to be replaced by a judicial commission that will consist of a “non-politicized” retired chief justice in the chair, and two “non-politicized” retired judges of the Supreme Court and one “non-politicized” retired judge from each high court.

The members of the commission will be appointed by the government on such terms and conditions as determined in its discretion. Thus, a body of retired judges, serving at the pleasure (read whims) of the executive with no constitutional tenure and security of service shall sit in judgment over which judge is fit to serve. This provision will constitutionally empower the ruling party to stuff this judicial (witch-hunt) commission with loyalist retirees and once they initiate an investigation into the conduct of a judge, such judge will be sent on forced leave during the period of such investigation. Thus, the sword of Damocles will continue to hang over all judges at all times who would be well advised to remain invisible and compliant to avoid the ire of the government. Even if the witch-hunt commission does not eventually remove a judge who dares to act independently, the threshold for initiating an investigation against a judge is so low that the government would be able to manipulate the outcomes of matters he/she is ceased of by initiating an inquiry and sending him/her on forced leave.

From a historical perspective, the malice of Pakistan’s judiciary has not been its ‘activism’ but the willing surrender of its duty to defend the constitution and protect fundamental rights of citizens against transgressions of the executive — more so in times when executive authority is annexed by a dictator. Sixty years after independence, under immense pressure from the bar and the public, the judiciary finally dared to question the whims of the general who monopolized the state’s executive authority. It was the possibility of creating a judiciary free from the shackles of the executive that fuelled the rule of law movement of the lawyers and civil society. And what lessons did the PPP draw from the movement? That the constitution needs to be amended and institutionalized restraints built-in so that the judiciary and individual activist (read miscreant) judges can be disciplined before their dissenting voices can stream-roll into a popular movement.

Part II

What would have happened to the rule of law movement had the PPP’s proposed amendments been a part of the Constitution in 2007? There would be no movement. The president would not need to unconstitutionally sack the Chief Justice on March 9, 2007, because he would have the constitutional authority to do so under Article 209. The government would not need to coerce and entice members of the Supreme Judicial Council to seal the fate of an ‘errant’ Chief Justice, because it would have the authority to compose a witchhunt commission that is predisposed to toeing the official line. In such a neutered system of justice, the courts would be packed by judges groomed in the Dogar mould and the rulers of the day would never need to declare a coup against the judiciary as witnessed on Nov 3. If approved, the amended Article 209 alone will transform the basic structure of our Constitution that envisages the judicature as an equal and independent pillar of the state, by making it an appendage to the executive.

The last few years have seen such extensive debate on the issue of appointment and removal of judges as never witnessed before. Such debates preceded the execution of the charter of democracy between the PPP and the PML-N, and consequently the appointment process streamlined in the charter, and now with some variation in the draft bill, endeavours to institute a transparent consultative process to appoint judges that includes the judiciary, the executive and parliament. Is it a sheer oversight then that the PPP opted for a removal process that leaves judges of superior courts at the mercy and whims of the executive? Who would determine whether the members of the proposed witchhunt commission are ‘depoliticized’? What does the word even mean and is it capable of being translated into a judicially enforceable concept? And why leave parliament out of a removal process that supposedly aims to strengthen judicial accountability? If judges are appointed after extensive bipartisan scrutiny, why not allow parliament to impeach them with a two-third majority as happens in many other jurisdictions, including the United States?

We have heard Asif Zardari repeat ad nauseam that the PPP is committed to strengthening the institution of judiciary and that focus on individuals in the context of restoration is misplaced. While the proposed removal process is indicative of the PPP’s approach to institutional independence of the judiciary, equally malicious is the duplicity in the words and deeds of the party when it comes to emphasis on individuals. While the PPP emphasizes de-linking the movement for judicial independence from the restoration of CJ Chaudhry, what it wants in reality is a shift of focus from the person of CJ Chaudhry in a manner that serves the person of Justice Dogar. That is why the draft bill includes three articles that have been drafted solely to return Justice Dogar to the office of the chief justice even in the aftermath of restoration. Under Article 179(2) the tenure of the chief justice will be capped at three years (or maybe five if the pressure from the PML-N and the lawyers doesn’t subside) to hastily show CJ Chaudhry the door after restoration.

Given that Justice Dogar reaches the age of superannuation on March 21, 2009, the retirement age of the judges of Supreme Court is being enhanced to 68 through Article 179(1), to give him a few more years as chief justice. But then there is the problem of Justice Javed Iqbal who was the second senior most judge on Nov 3 after CJ Chaudhry. While Justice Javed Iqbal was not invited to be a PCO judge he was offered a ceremonial position by the Musharraf regime that he took citing personal financial need. Now if all judges are restored, the CJ’s tenure is capped and the retirement age enhanced, Justice Dogar still won’t become CJ as Justice Javed Iqbal is not only senior but would also retire after Justice Dogar. Thus a proviso has been added to Article 270CC, stating that all judges would be restored, except a judge who has taken up another position with the government. Justice Javed Iqbal is the only such judge and so instead of including a long-winded fable in the proviso, Mr Naek could simply have stated that all judges except Justice Javed Iqbal will be restored.

The PPP’s draft bill has been a disappointment of enormous proportions. One the one hand it documents the double-speak of the PPP that enjoys taking jibes at the general as a populist measure while seeking to indemnify his felonies by amending the Constitution, and utters platitudes in favour of a strong judiciary while devouring its independence through law. On the other hand, the content of the draft bill suggests that the PPP has no intention of resolving the judicial gridlock. As an embodiment of the PPP’s policy on the issue of restoration of judges and judicial independence, this bill makes evident that the incumbent PPP leadership simply does not subscribe to the principles that have been driving the rule of law movement and the choice of constitutional amendment as a mode to restore judges is simply a smokescreen to defer the issue indefinitely.

To the extent that PPP’s policy on restoration is being defined by its desire to have a pliant ‘jiala’ court serve its government uninhibited by law and principles, it cannot afford to restore the deposed judges without amending Article 209 of the Constitution. Because the moment the Nov 3 judiciary is restored, the Supreme Judicial Council under the existing Article 209 could be constituted to investigate the misconduct of the PCO judges, and consequently the leverage Zardari house enjoys in this regard might vanish in a moment along with its dreams of retaining a Dogar Court to look out for Mr Zardari’s legal interests (including the longevity of the NRO). And then the constitutional amendment route has its advantages too. After all the PPP has never explicitly stated that it is opposed to restoring the judges and yet in theory it has now thrown the ball in the court of its coalition partners by handing them the malevolent draft bill.

The coalition partners, the lawyers, civil society and the media can now continue to debate the draft bill clause-by-clause, and once it is introduced in parliament, the debate and disagreement can continue till the cows come home. Meanwhile, the deposed judges can hang in a limbo, the Dogar Court can stay in place, and Zardari House can continue to hold the reigns of the country. During this period of foot-dragging in the name of consultation, the lawyers’ movement might die its own death due to fatigue. If that doesn’t happen and the long march does shake up the echelons of power, the immediate casualty will be General Musharraf. And such outcome might in itself take the wind out of the sails of the lawyers’ movement by providing an exhaust to this nation’s pent-up anger and emotion. And then PPP can take charge of the presidency as well while continuing its antics in parliament over the restoration issue.

Asif Zardari has written an intelligent script. But as a student of history and politics he should heed the lessons from General Musharraf’s recent experience and realize that in real life fairytales do not always end as desired. During the first half of 2007 there were ample opportunities for the general to read the writing on the wall and change course. Being the commando that he is, he sought to become infallible and consequently trapped himself in a corner where he now remains at the mercy of Mr Zardari and their US patrons. There is always a time for redemption, followed closely by unforgiving accountability. The pursuit of his self-scripted fairytale might appear to be the best option for Asif Zardari for the time being. But appearances can be deceptive. The safer option would be to reassess his options with a finger on a national pulse and make amends before time runs out.

By Babar Sattar

League-N were ended in failure on Tuesday. Muslim League-N delegation is returning home in a flight at 3:00 pm from Dubai after the failure of talks.
According to the sources the leaders of Muslim League-N have told their PPP coalition partners that they could announce about quitting the ministries tomorrow evening. The final decision however will be made and announced by the party chief Mian Nawaz Sharif in a policy statement.”

Further, the draft reads in part: “And whereas, this assembly is mindful that the foundation of democracy cannot survive without a return to the rule of law. We are mindful that the rule of law cannot survive the rule of the gun unless we have an independent judiciary. And, we are cognizant that we shall never have an independent judiciary if judges of the superior courts of this country are imprisoned at the whims of a lone individual.”