On Defense Secretary Robert Gates’s recent trip to Pakistan, he was reportedly asked by one Pakistani military official, “Are you with us or against us?” to which the defense secretary replied, “Of course, we’re with you.” But who precisely did the secretary mean by “you”? For both the U.S. and Pakistan’s interests, the “you” must mean the people who support the three principles of democracy, the rule of law, and civilian control in Pakistan — and, specifically, not those who would undermine them.
Two recent developments show that these principles are in danger, and that should trouble both U.S. and Pakistani policymakers concerned about Pakistan’s security and stability.
First, the Pakistani Supreme Court, led by Chief Justice Ifitkhar Chaudry, issued its full opinion (originally announced last December) declaring the Pakistani “National Reconciliation Ordinance” unconstitutional. The NRO, which was decreed in October 2007, granted amnesty to over 8,000 individuals of all political parties who had been accused of corruption under politicized circumstances. The decree was negotiated with the assistance of the United States to assist Pakistan in making the transition from a military dictatorship to democratic elections.
But the Supreme Court’s decision to overturn the NRO also upheld a controversial article of Pakistan’s constitution, much to the dismay of some of the brave lawyers who took to the streets to defend the court’s judicial independence and integrity last year. Article 62 was conceived in 1985 by General Zia-ul-Haq and declares that members of parliament (which includes the currently elected president, Asif Ali Zardari, and all ministers of the Cabinet) are disqualified from serving if they are not of “good character,” if they violate “Islamic injunctions,” do not practice “teachings and practices, obligatory duties prescribed by Islam,” and if they are not “sagacious, righteous and non-profligate.” Non-Muslims must have “a good moral reputation.”
Relying in any way on such entirely subjective and political standards, such as “Islamic injunctions” and “good moral reputation,” increases polarization in the country and brings into question the political independence of the Pakistani Supreme Court, which those lawyers bravely defended on the streets as critical to the rule of law.
Indeed, some leaders of the Lawyers Movement, such as Asma Jahangir, spoke of the danger to civilian rule this decision represents and the imbalance in power among democratic institutions that the judges have created for themselves. “If parliamentarians, who also go through the rigorous test of contesting elections in the public domain, are to be subjected to such exacting moral standards then the scrutiny of judges should be higher still,” Jahangir said.
Another troubling event occurred just as Secretary Gates was arriving for his meetings with military leaders. Human Rights Watch issued a report chiding elements of “the Pakistani military” for leading a “backlash” against the $7.5 billion October 2007 Kerry-Lugar U.S. aid package, describing this effort as “an apparent attempt to destabilize the elected government and force the resignation of President Asif Zardari.”
But the military’s claim that Pakistan’s sovereignty had been compromised by “conditions” imposed by Kerry-Lugar is, in fact, baseless. As a reading of the law plainly demonstrates, the Kerry-Lugar aid package imposes no “conditions” on Pakistan at all. Rather it applies only to the U.S. secretary of state, who must certify, among other things, that the Pakistani military was making efforts to combat terrorism and nuclear proliferation, and was not “materially and substantially subverting the political and judicial processes of Pakistan.” Why would anyone in the Pakistani military object to such a certification by a U.S. secretary of state?
The Pakistan people elected President Zardari with 70 percent of the Electoral College vote. Yet even popular civilian rulers in Pakistan have historically faced repeated challenges to their rule while in office, both from the political opposition and the military leadership. This time is no different but this time the U.S. administration can help support democracy over instability or, worse, military rule.
The Obama administration must be clear that it is uneasy with a Pakistan Supreme Court that appears bent on making subjective and political judgments that interfere in the democratic process. And it must be just as clear — especially in communications by the U.S. military leadership — that the peace and security of America and Pakistan depend on the continuation of democracy and civilian rule.
O’Connor is former Moscow bureau chief and White House correspondent for CNN. She and Lanny J. Davis, a columnist for The Hill, represent the American Committee for Democracy and Justice in Pakistan.