back to mainpage

Pakistan's extra-judicial judiciary
Alizeh Haider

The News, 23 November 2007

 

Judging by the defiant posture adopted by General Musharraf of late, it comes as little surprise that Mr. Negroponte has been unable to coax the General to give a definite date for ending the emergency. Unfortunate as it is, the drone of the rhetoric remains unchanged, such that the General is committed to holding 'free and fair election'; the emergency was necessary to fight effectively against the religious and terrorist sources; it would ensure a smooth political atmosphere leading to orderly elections… etc

At a time when Pakistan is faced with tremendous uncertainty and instability, such unbelievable logic offers little respite. In his latest visit to Pakistan, John Negroponte said that for fair and independent elections it is necessary to lift emergency, take back restrictions on media and stop actions against political leaders. However, conspicuous by its absence on this list is the appointment of an independent and trustworthy election commission, reinstatement of an independent judiciary and an end to the victimization of both bench and bar.

One point which needs to be made with greater conviction by all international leaders demanding democracy in Pakistan is that a non aligned and neutral caretaker government and an independent judiciary is a necessary pre-condition for a genuine democracy. Hence, to facilitate a move towards a bona fide democracy the Musharaf government must restore the pre-PCO judiciary; particularly those honourable judges who refused to take oath under the PCO (Provisional Constitutional Order).

One must understand that what these judges have done is unprecedented and exceptional. For the first time in Pakistan's history, the judiciary asserted its independence in order to uphold the rule of law and did not play second fiddle to the government.

The judiciary made it clear that even the president will have to play by the rules and respect the constitutional rights of the people. However for the president, this was akin to 'interference' on the part of the judges and under his military regime, he is making them pay a heavy price for it.

Today, the judiciary and the legal system of Pakistan stands virtually destroyed. Majority of the judges, who refused to take oath under the PCO are under house arrest. An attempt was made to fly the Chief Justice of the Supreme Court and his family to Quetta and he resisted – however he continues to be held under virtual house arrest. Peaceful protests by lawyers have been tear-gassed and baton charged and some of the most respected senior lawyers have been physically manhandled by the law enforcement agencies. The top brass lawyers of the country have been arrested and some, like Muneer Malik, Ali Ahmed Kurd, Tariq Mehmood and Aitzaz Ahsan are being kept in solitary confinement. Instead of arresting religious fanatics, militants and terrorists, Musharraf preferred to arrest more than 3,000 lawyers and human rights activists across Pakistan.

Competence, eligibility, and seniority are no longer the criteria for appointment of judges. With very few judges willing to be part of the new sham dispensation -- that is the new judiciary under the PCO – the government has resorted to playing a carrot and stick game. Junior lawyers and judges are being lured in with tempting offers of such positions in the judiciary, for which, under normal circumstances, they would not qualify. Even after such unscrupulous and unconstitutional measures, the Supreme Court is still short of the requisite number of judges and a majority of lawyers have boycotted all PCO judges. As a result, one of the most important institutions of the country has become ineffective and dysfunctional.

The question is how can such an arbitrary and biased judicial system -- if it can even be called a system -- be part of a democratic set-up? If the defunct judiciary is not restored and the lawyers hold their ground and refuse to recognize the post-PCO judiciary, what effect will this have on the legal system of the country? Only time will tell what the long-term effect of this will be on the credibility of the judiciary. After the example that has been made of the gagged judges, will any judge in the future dare to rule against those heads of state who flout the law?

Despite nationwide protests, Musharaf remains unmoved. He has defiantly stated that those judges who did not take oath under the PCO shall not be reinstated and 'will not be allowed to come back'. This is a highly condemnable act against those honourable and principled judges who are an asset to the country. These are the courageous men who have become a symbol of the struggle for democracy in Pakistan and have given hope to the common man who had lost faith in the rule of law.

The international community needs to give this matter its due importance and acknowledge that subjugation and suppression of the judiciary is the biggest symbol of a dictatorial regime. There can be no democracy without a free and independent judiciary. For the forthcoming elections and the consequent government set up to have any democratic credibility, the pre-PCO judiciary must be reinstated. Any thing less would be a farce, and unacceptable to the people of Pakistan.

The writer is a lawyer and human rights activist currently based in the UAE. Email: alizeh.haider@ yahoo

Digging in Deeper in Pakistan
NY Times, 23 November 2007
http://www.nytimes.com/2007/11/23/opinion/23fri2.html

Gen. Pervez Musharraf has done far too little to drive Al Qaeda and the Taliban from its Pakistani sanctuaries over the last six years, but President Bush still insists on linking America's interests to the general's erratic and authoritarian whims.

Even with Pakistan under martial law, Mr. Bush claimed preposterously this week that the general "truly is somebody who believes in democracy."

Some American military planners, meanwhile, are proposing digging in even deeper. A story in Monday's Times reported on a Pentagon proposal to sponsor and underwrite alliances between Pakistani Army units and tribal fighters near the country's border with Afghanistan where Al Qaeda and the Taliban are strongest. The plans also call for increasing the size and role of American special operations forces working in those regions.

The Pentagon has had successes working with tribal groups in northern Afghanistan against the Taliban and more recently with Sunni sheiks in Iraq against Al Qaeda in Mesopotamia. Unfortunately this plan ignores two critical facts about Pakistan: it is far from clear that these tribal groups want to join the fight, and there are similar doubts about the loyalties of some of the Pakistani military officers, especially now .

Before the Pentagon goes any further, President Bush must work a lot harder to restore democracy — the best hope for holding off the chaos that would make Pakistan an even more hospitable host for extremists. That means that he must make clear once and for all that Washington is firmly on the side of democracy, not more deal-making designed to keep the general in power .

Instead of urging Benazir Bhutto to expend her credibility on implausible power-sharing deals, Washington should be encouraging her to work with her longtime political rival, former Prime Minister Nawaz Sharif, and build a broad civilian democratic front. The administration also needs to play a much tougher diplomatic game with the Pakistani military, letting it know that General Musharraf's dictatorship is not in its own best interest, nor will it guarantee Pakistan 's stability.

Washington should make clear that it will provide all the military support Pakistan needs to fight terrorism and defend its borders. But it will not underwrite Pakistan's efforts to acquire the advanced weapons it seeks unless the army shows more effectiveness against terrorism and more enthusiasm for democracy .

Before plunging American forces more deeply into Pakistan's remote borderlands, Washington needs to deal with the critical political crisis threatening that country's very core and America's strategic interests.

Musharraf and His Collaborators
S Akbar Zaidi
The News, 23 Nov 2007

The emergency in Pakistan has revealed the truth not just about Musharraf's moderate enlightenment, but also about the country's liberal elite and the collaborationist political leaders, especially the PPP. President-general Pervez Musharraf's policy of enlightened moderation is probably buried under the events of the last few days following the announcement of the emergency/martial. It is not just that an emergency has been enforced in Pakistan which is of importance, but its nature and form are also of considerable interest.

The fact that the Supreme Court has been attacked by Pervez Musharraf, and the judges removed and/or asked to take a new oath, was perhaps the most expected response to any potential extra-constitutional move to be taken by the general. With the court expected to rule on whether Musharraf was eligible to contest the election for president of Pakistan (after he had actually done so, one must add), there was growing speculation that it could rule against him. There are few people if any, laypersons or analysts, who believe that Musharraf has imposed the emergency for any "national interest", as he proclaimed, and there is agreement that this step was taken exclusively to save his own skin and uniform.

The fact that the lawyers, who have become the vanguard in a popular struggle against Musharraf, would be targeted, was also probably expected. After March 9, this year when the chief justice of Pakistan was first removed, the main opposition in the streets of Pakistan came from the lawyers all across Pakistan. That movement from March to September was a popular protest against the interference of the president-general in the affairs of the highest judiciary. The lawyers first protested the removal of the chief justice, and occasionally the movement began to verbally attack the military as well. Importantly, political parties did not play a role of any significance in the lawyers' protests, and hence their movement always remained popular rather than political.

Occasionally, the heavy-handed arm of the military state also fell upon the media, particularly the electronic media which was reporting live, almost every public event of the chief justice and all his meetings. Media persons were roughed up and some television stations were ransacked by the police, all captured live on television. All forms of protest were being beamed live for all to participate in. The current clampdown has this major difference, that for at least the first eight days, all private television channels, including those broadcasting news and analysis, sports, music, and even food programmes, were banned. Even international news channels have been blocked.

This attack on the media by the president-general affirms two things. Firstly, that this is an intolerant, dictatorial, repressive regime, which has no patience with dissent, and for whom moderate enlightenment has very different meanings than it does for most people. And, secondly, the recognition that the media now plays a major role in reporting events, and perhaps even forming public opinion. The electronic media has certainly arrived, and plays a critical role in the public sphere in Pakistan. Hence, it too must now be controlled. How it emerges from the stringent fetters being imposed on it, will be one of the many interesting sites of struggle that will mark the immediate future of this country.

The last eight years, certainly till March this year, had made many well-intentioned Pakistanis forget that President Pervez Musharraf was actually a general who is the chief of army staff and that Pakistan was ruled by the army. Musharraf's demeanour and his clever posturing, both at home and particularly abroad, as the champion at the frontline state in the war against terrorism, resulted in the so-called Pakistani liberal elites supporting a president in uniform. They were quick to put aside the fact that Pakistan was ruled by an anti-democratic military general, on the grounds that he was a "liberal", and was a westernised and enlightened man. In October 1999, when Musharraf overthrew a democratically elected prime minister, many "civil society" representatives rushed to welcome him with open arms, and many even collaborated and joined his cabinet.

Following 9/11, all contradictions for civil society in supporting a military general were quickly replaced by his so-called liberal credentials in the fight against Talibanisation and fundamentalism, both on Pakistan's border, but importantly, also at home. The present crisis in Pakistan's politics, and it is indeed quite severe and on multiple fronts, has not been caused by the military or by General Musharraf alone. One expects the military to behave undemocratically and dictatorially. It does not represent civil society nor does it have any ambition or need to bring about a real democratic transition. That is the task of civil society, liberals, and most importantly, political actors and parties. Pakistan's civil society and its liberal elite have been concerned only with Musharraf's "lifestyle" liberal policies, and in the process, have ignored his anti-democratic, highly politically illiberal, stance. The choice for them has been "liberalism", where their lifestyles are protected at the cost of democracy.

This large, articulate and influential segment has been a key constituency in support of General Musharraf for much of these last seven years and a key factor in his largely untroubled longevity. The emergency has revealed the truth not just about Musharraf's moderate enlightenment, but also about Pakistan's liberal elite, as much as it has about the collaborationist and political leaders of Pakistan, most importantly, the antidemocratic leaders of the most popular political party, the PPP. At a time when General Musharraf's regime was on its knees during the lawyers' movement earlier this year, the leader of the PPP, Benazir Bhutto, was cutting deals with General Musharraf in order to ensure her political future and fortune, a deal which was supposed to have rescued assets worth $1.5 billion through a "reconciliation" ordinance promulgated by Musharraf. The popular lawyers movement failed to become political precisely because Bhutto preferred to enter the political arena through the back door.

At a moment when the Musharraf regime is again weak and vulnerable, this time with criticism from western countries as well, the one person who can rescue him and his regime is Benazir Bhutto. So far, Bhutto has moved rather softly in her criticism against Musharraf. Their earlier deal, now probably with higher stakes, required the general to give up his military post if Benazir would become his prime minister. Beyond repeating that demand, she has gone no further. There has been nothing said against the military or the state, nothing against a retired Musharraf as president. Benazir Bhutto is the only politician of any stature who is free in Pakistan today, with all minor and important politicians detained. All roads are still open for a deal between the two, the military general, preferably retired, and a so-called democratic politician. Pakistan's politics and its society are about collaboration, not confrontation.

It is clear that both the general and the prime ministerial aspirant, are playing the waiting game, hoping that one gives in before the other, raising their own stakes. Ironically, despite collaborating with Musharraf over the last few months and despite the anti-democratic stand taken by her, the choice rests more with Ms Bhutto than it does with Musharraf. She can agree to save the latter's political future by agreeing to cut another, better, deal with him and perpetuate military rule under a new arrangement. Or, she can, quite out of character, lead a truly democratic struggle, not just against the emergency, but against Musharraf and against military rule. However, whatever option she, or anyone else, chooses, Pakistan's present political crisis is unlikely to be addressed in the short term.

The emergency/martial law is a temporary measure -- the presence of the army, a permanent problem. What is sad is that most Pakistanis have now come to accept the state of military rule in Pakistan. The crisis of Pakistan is not its emergency or martial law, neither is it that a military man in uniform has ruled Pakistan in comfortable authoritarianism without much protest or opposition. The tragedy of Pakistan is that its supposedly liberal and enlightened classes and even its political classes are collaborators.

For the liberals their concern is more with a lifestyle liberalism, which Musharraf has promoted, rather than with a political liberalism. And for supposedly democratic, political actors, what matters is that somehow they get access to power. How they get there is irrelevant.

The writer is a Karachi-based social scientist. A longer version of this article first appeared in the Bombay-based Economic and Political Weekly.

 
Geo is Shut Down.
Please give your opinion.
CURB ON MEDIA

What national leaders and celebrities say...
CURB ON MEDIA
Global Media Coverage
JANG BLOG
Viewers Forum
Feedback