The recent unrest in Pakistan is about much more than regional politics — it is an attempt to destroy a nascent movement by judges and attorneys who are fighting to establish an independent judiciary and a culture of respect for the rule of law, something which we in the West sometimes take for granted.
I recently received the following email from a former colleague of mine who is a prominent attorney in Pakistan. He has been risking his personal safety to protest Pervez Musharraf’s suspension of the Pakistani Constitution, and asked that this message be circulated as widely as possible (I have removed specific identifying information). The situation is more complex than many news reports would lead one to believe.
In particular, my colleague warns that Musharraf’s announcement of elections is meaningless unless and until (1) the Constitution is reinstated, and (2) hundreds of judges who have been fired for expressing independent views are returned to their positions. He also warns against assuming that Benazir Bhutto, who gets favorable coverage in the Western press, is the most credible exponent of democratic values. The corruption allegations against her are well-founded.
Some resources: Human Rights Watch (among other groups) is monitoring the current situation in Pakistan, and calling for the release of all detained activists. An article on the crusade of Pakistan’s bar for the rule of law is here. Liveblogging from Pakistan on the course of events here.
And now to the email:
I was arrested by the police the day after the imposition of martial law in the country and got out on bail yesterday. Kindly note that this is the first case in our history and possibly anywhere directed specifically at the judiciary and the independence that it had started to display. The Constitution and the key fundamental rights guaranteed by it have been made inoperative. The tension between the regime and the judiciary had developed during the year in the wake of the lawyers’ movement against General Musarraf’s attempt in March to oust the Chief Justice who had started to show signs of independence unacceptable to the military.
The US and EU have made some noises about the restoration of the Constitution and the holding of free elections at the earliest. Please note that any call for holding elections without the restoration of the judges who have been ousted plays directly into General Musharraf’s hands. 12 out of 16 Supreme Court [SC] judges, including the Chief Justice, have been ousted pursuant to a Provisional Constitutional Order (PCO) issued on 3 November by General Musharraf in his capacity as the Chief of the Army Staff. This order has no constitutional validity and is simply an assertion of military power. Only judges with known affiliation to the military junta have lined up to take a fresh oath of office under the PCO in violation of their original oath to defend the Constitution. Independent minded judges have not been offered the fresh oath and if offered would not have taken it. As a consequence, apart from the decimation of the SC, nearly 50% of the judges of the provincial high courts have been stripped of their office. This is a virtual demolition of the judiciary in Pakistan. The US and the EU are not talking about it.
Elections without the restoration of the sacked judges will amount to throwing a cloak of ratification over the General’s assault. The call must be ‘no elections without the restoration of the judiciary’. I assure you there can be no free elections under General Musharraf’s watch with a handpicked docile judiciary looking the other way. It is also important to understand the context in which martial law has been imposed. The action of 3 November was inspired by three cases before the Supreme Court that were likely to be decided in the next few weeks. The first pertained to the constitutionality of General Musharraf’s election as President for a further term of five years in October even though at the time of the so-called election he was, and remains, the army chief. There is a clear bar in the Constitution against an army officer engaging in politics. It had become increasingly clear that the SC would declare his election invalid.
The second case concerned the validity of an amnesty that the General had granted through an Ordinance of which the main beneficiary was Benazir Bhutto. This amnesty affects not only the corruption cases before the Pakistani courts that Ms. Bhutto has been evading for the past eight years but also the cases before courts in Switzerland and Spain. A Swiss judicial authority has already convicted Ms. Bhutto of having received illegal gratification during her term as PM for government contracts granted to Swiss companies. The matter is under appeal with original decision automatically suspended. The Swiss authorities decided ten days ago to continue to press charges of aggravated money laundering against Ms. Bhutto. However, after General Musharraf’s amnesty ordinance the Pakistan authorities had declared their intention not to participate in proceedings in Switzerland. It is clear that this failure to participate will make it exceedingly hard for the charges against Ms. Bhutto to be established. The amnesty ordinance was challenged before the Pakistan Supreme Court by one of our most respected elder politicians, a former finance minister and a founding member of the People’s Party founded by Ms. Bhutto’s father. Needless to say he has moved away from the People’s Party in disgust at Ms. Bhutto’s politics. . . .
The third case is a contempt of court petition filed by former PM Nawaz Sharif who has been forcibly kept out of Pakistan by General Musharraf despite a clear SC judgment saying that he a has a fundamental right to return to Pakistan. In its last hearing conducted a few days before the imposition of martial law the court had declared its intention to punish all involved, including possibly the prime minister, in the flouting of its earlier orders directing that Mr. Sharif not be prevented from returning. The three cases described above are now unlikely to amount to much. The case against the amnesty order rested primarily on article 25 of the Constitution that assures equality for all. This article has been suspended. The common impression is that this has been done with Ms. Bhutto’s approval. Herein lies the rub. No matter how much Ms. Bhutto decries the martial law she is its chief beneficiary. It is for this reason that Ms. Bhutto has hardly squealed about the restoration of the judges even though she joins the daily US demands for fresh elections. General Musharraf generously agrees, daily, that elections must be held soon. There is no talk of the restoration of the judiciary. Mr. Nawaz Sharif’s case depends on article 15 of the Constitution which assures freedom of movement and right of residence to all citizens. This article has also been suspended. As for the general’s eligibility the newly put together Supreme Court is likely to hear the matter and throw out the challenge soon.
It is critical to the future of this country and the volatile region that we inhabit that the outside world understands what has happened. Please circulate this message as widely as you can . . . and take up the cause of the independence and restoration of the Pakistani judiciary at whatever level you can. It is important that Benazir Bhutto not been seen and heard as the main representative of the pro-democracy, secular minded civil society of Pakistan. The Pakistan Bar Council and the other lawyers’ associations are all united in opposing elections without the restoration of the judiciary. They must be heard. I will try and stay in touch though there are daily raids to pick up lawyers considered troublesome.