Monthly Archives: July 2012

A Way Out?

Justice Asif Saeed Khosa

Pakistan’s Supreme Court sent mixed signals this week as it postponed confrontation with the Prime Minister over its order to write a letter to Swiss authorities reviving corruption cases against the President, Asif Zardari. Convictions against Mr. Zardari were previously overturned when evidence of a political conspiracy surfaced in 2001.

Speaking on Wednesday, Supreme Court Justice Asif Saeed Khan Khosa rejected a request by Attorney General Irfan Qadir that proceedings be delayed until after Ramadan, but then stated that the Court accepts that the President enjoys immunity under Article 248 of the Constitution.

“We don’t deny about the immunity and we are ready to give any help by even stating in our order that Zardari is the president and has the immunity. God willing nothing will happen and democracy will not be derailed,” Justice Khosa said, adding that the world would watch that both the institutions would be vindicated.

In a separate hearing on a recently promulgated bill immunizing specific high-level officials from contempt of court charges, Chief Justice Iftikhar Chaudhry seemed to signal that he is prepared to deny the president immunity.

Asking whether US Presidents Richard Nixon and Bill Clinton were granted immunity, the chief justice of Pakistan on Wednesday observed that if the court had not granted immunity to the prime minister, it could also withhold it from the president.

While Justice Khosa’s conciliatory remarks suggest the possibility of a way out to defuse the tensions, Chief Justice Chaudhry’s are somewhat bewildering. US Presidents Nixon and Clinton were not be granted immunity because the US Constitution does not provide for it like Pakistan’s Constitution does.

Whatever was intended by the Chief Justice’s remark, Justice Khosa’s statement suggests that the Court may not be willing to push the confrontation to the brink. This is a positive sign that discussions may be taking place to find a way out of the present impasse that preserves the integrity and authority of both the judicial and executive branches of government, and, most importantly, the Constitution.

Prior Convictions and Pakistan’s President

Pakistan's President Asif Ali Zardari

In the last few weeks, news reports have appeared in the US which mischaracterize the history of allegations against Pakistan’s President Asif Ali Zardari. The publication “KGS Nightwatch,” a nightly national security newsletter, reported that  Pakistan’s President Asif Ali Zardari “was disqualified from the start to ever serve in any public office because of his prior graft convictions and ongoing criminal investigations in Switzerland.” An NPR story reported that “the government of Switzerland opened an investigation into Zardari’s financial dealings, but the case was closed with no action taken.” These reports are factually incorrect.

Here are the facts: Asif Zardari was first convicted in 1999 by the Lahore High Court on corruption charges. In 2001, Pakistani intelligence documents including recording of phone conversations leaked to The Sunday Times (UK) showed that the presiding judge, Justice Malik Muhammad Qayyum, had been secretly colluding on the case with PML-N officials including then Chief Minister of Punjab Shahbaz Sharif. Pakistan’s Supreme Court overturned the conviction in 2001.

In 1998, then Prime Minister Nawaz Sharif also initiated a case on the same allegations against Asif Zardari in Switzerland (not the Swiss authorities themselves). A Swiss magistrate convicted Zardari in absentia in 2003, but later that same year, a Swiss tribunal overturned the conviction on appeal. While it is true that opposition politicians continued to press the cases in Switzerland, they had not been able to secure a conviction by the time the National Reconciliation Ordinance (NRO) was promulgated four years later. Daniel Zappelli, Geneva’s chief prosecutor, told Reuters in 2008 that “In the SGS/Cotecna case, no funds belonging to Benazir Bhutto were found,” and that he did not have sufficient evidence to bring Zardari to trial.

In short, neither conviction was able to withstand scrutiny.

Both convictions must be viewed in the historical and political contexts in which they were carried out. The Lahore High Court was proven to be pursuing the original case against in collaboration with government officials. Additionally, during the 1990s, the ISI was carrying out a secret program to defeat PPP candidates. Nawaz Sharif has also reported admitted that the Ehtesab (Accountability) Bureau initiated political cases against PPP leaders.

Nowhere does Pakistan’s constitution prohibit the subject of ongoing investigations or the victim of political attacks from holding public office. In contrast to recent news reports, Asif Zardari was and is eligible to serve as President of Pakistan. Reports that suggest otherwise erroneously and unhelpfully undermine the credibility Pakistan’s burgeoning democratic system.

Ambassador Munter on Capital Talk

Ambassador Cameron Munter spoke to Hamid Mir on Capital Talk on Monday, July 23 in his last major interview before leaving Pakistan to return to his academic career in the US. During the interview, Ambassador Munter left the program with the following message:

Pakistan, I believe, needs to have confidence in itself – and by that it has to believe that it can solve its own problems, that it can elect the right people, that it can repair its democratic system; that these things are possible; that it’s not waiting for other people to do it for them; that Pakistan has the brains and Pakistan has the guts to solve these kinds of issues. When Pakistan does that, the true friends of Pakistan around the world – and America is among them, but we’re not the only ones – Pakistan’s friends around the world are there to support Pakistani leadership.

Ambassador Munter concluded by saying that he is optimistic about the future of Pakistan, noting that “Pakistanis are great people – they simply have to achieve their potential.”

Pakistan Political Report: July 21st Special Election (NA-151)

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Multan Polling StationWith general elections expected early next year, Thursday’s “by-election” for the National Assembly seat vacated by former Prime Minister Yousaf Raza Gilani was watched closely as a bellwether for what a post-2013 Pakistani government will look like. Based on the results of Thursday’s vote, it may look a lot like the present government.


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Justice Louise Arbour Concerned About Direction of Pakistan’s Supreme Court

Justice Louise ArbourJustice Louise Arbour has a distinguished career devoted to promoting the principles of justice. Currently serving as the President of the International Crisis Group, Justice Arbour is the former UN High Commissioner for Human Rights, a former justice of the Supreme Court of Canada and the Court of Appeal for Ontario and a former Chief Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda. As such, she knows a thing or two about the importance of an independent judiciary in developing countries and emerging democracies. That’s why, when Justice Arbour expresses concerns about the looming constitutional crisis in Pakistan, her concerns merit serious consideration.

An ardent supporter of Pakistan’s 2007 “Lawyer’s Movement” to restore judges deposed by Gen. Musharraf, Justice Arbour had hoped to see a new era for the Court, one that broke with its past of supporting military dictators and their mangling the Constitution and the rule of law. Today, she fears that those same justices have become “intoxicated with their own independence,” and that the current direction of Pakistan’s Supreme Court Justices threatens to upend the very democratic order that restored them to the bench.

Speaking to a crowded auditorium at the Woodrow Wilson Center in Washington, DC, Justice Arbour noted that the current tension between Pakistan’s Supreme Court and its elected officials might seem like a political soap opera were it not for Court’s history of collusion with the military to suppress democracy. Judges “who took an oath to a military dictator are not well placed to make the decision” to remove democratically elected officials, she observed, referring to Chief Justice Iftikhar Chaudhry’s 1999 oath under Gen. Musharraf’s Provisional Constitutional Order. While not inevitable, Justice Arbour said, it is possible that Pakistan’s Supreme Court could end up dissolving the democratically elected government with the help of the military, putting in place an extended caretaker government in what would be, for all intents and purposes, another coup.

During her visit to Pakistan, she assured the room, she met with no government officials. Her interest was in the views of the legal community, whom she found deeply divided, seemingly on political lines. This troubled the former Justice, who worries that Pakistan’s Supreme Court has become increasingly politicized, threatening its credibility. She pointed to the memo commission, which she said “reflected very poorly on the judiciary,” and added to the appearance of growing politicization.

The present case, in which the Supreme Court has ordered the Prime Minister to write a letter to Swiss authorities requesting that criminal cases be reinstated against the President, adds to the appearance of an increasingly politicized judiciary. From a legal perspective, the issue centers on one of separation of powers. In fact, Pakistan’s Chief Justice has repeatedly stated recently that “parliament is not supreme.” In questions such as these, where the Supreme Court has a vested interest in the outcome, Justice Arbour suggests that it is all the more important that court show self-restraint and frame its decisions in a way that “advances the authority of all institutions,” not only its own.

Justice Arbour was also clear that her concerns about the Supreme Court’s actions do not imply a disinterest in accountability. There is a misconception that presidential immunity is unprecedented, she explained, reminding the audience that former French President Nicolas Sarkozy enjoyed immunity from prosecution during his term in office and, now that he is out of office,  faces possible charges for campaign finance violations.

Article 248 of Pakistan’s Constitution, which grants temporary immunity to Pakistan’s President, Prime Minister, and Governors, is clearly worded, said Justice Arbour; and that privilege exists for a reason – to allow government officials to perform their official duties without distraction. Asked by a member of the audience whether President Zardari should be subject to accountability, Justice Arbour responded that all officials should be subject to accountability. The issue is not one of accountability, but timing. Rather than wait six months for Pakistan’s next general elections, she said, the Supreme Court is unnecessarily undermining not only the present government, but the democratic system, which is weak from decades of neglect under military regimes.

Justice Arbour is not the only former Supreme Court justice to express grave concern about the direction of Pakistan’s Supreme Court. Last month, Justice Markandey Katju, a former member of the Supreme Court of India, wrote a detailed explanation for his concern that Pakistan’s Supreme Court is “playing to the galleries and not exercising the self-restraint expected of superior courts.”

As a growing chorus of international jurists expresses concerns about the actions of Pakistan’s Supreme Court, we hope that Pakistan’s Honorable Justices will consider Justice Arbour’s words carefully if for no other reason than their own self interest. Historically, Pakistan’s courts suffered greatly under undemocratic regimes. Should Pakistan’s democracy become derailed as a result of the present crisis, there’s no reason to believe the judiciary would fare better this time around.

Public Oversight Protects Institutional Reputations

Pakistan parliament

Since being freed from its shackles in 2002, the growth of Pakistan’s private media industry has been lauded as an important (if imperfect) check on political power. By exposing official corruption, Pakistan’s media is acting on the famous maxim of US Supreme Court Justice Louis Brandeis: “Sunlight is the best disinfectant.” While Pakistan’s politicians increasingly find themselves under the media microscope, the same principle does not apply equally to all of Pakistan’s institutions.

Earlier this month, the Public Accounts Committee (PAC) for audit reports related to the allotment of residential plots to three existing and twelve retired judges of the Supreme Court. The Supreme Court refused to provide any information to the PAC, referring to Article 68 of the Constitution which says that “No discussion shall take place in [Majlis-e-Shoora (Parliament)] with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties.”

It is hard to conceive how the discharge of the duties of a Supreme Court or High Court judge would involve receiving expensive residential plots. Nevertheless, the judiciary appears to be uninterested in exposing its own members to the same type of oversight considered essential for elected officials.

In one way, though the PAC got off easy. When real estate tycoon Malik Riaz accused Pakistan’s Chief Justice of corruption, he found himself facing jail time for contempt of court. Contempt charges have also been leveled against the former Interior Minister, Rehman Malik, former Law Minister, Babar Awan, Mian the owner of a private TV channel and two TV talk show hosts.

None of the defendants may not have much recourse. Article 204 of Pakistan’s Constitution allows the Supreme Court to punish any person who “scandalizes the Court or otherwise does anything which tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt.” Regardless of whether or not a judge is involved in any crime or malfeasance, it may be illegal to say so.

Pakistan’s judiciary is not the only institution that would prefer to remain off limits to criticism. A defense committee in Pakistan’s Senate on Monday recommended that media criticism of Pakistan’s military should be stopped. The meeting, chaired by Mushahid Hussain Syed (PML-Q), concluded that criticism of Pakistan’s armed forces is “irresponsible behavior” that is harming the military’s reputation abroad.

Tahir Hussain Mashhadi (MQM) reportedly said that “no country criticizes its own armed forces and sensitive institutions but in Pakistan, the so-called analysts do so arguing unnecessarily about the excess of national defence budget,” a statement that must have amused Defense Secretary Leon Panetta, Gen. Stanley McChrystal, and others in the US military establishment.

Like Pakistan’s judiciary, the military too enjoys extraordinary protection from criticism. Article 63(1)(g) of Pakistan’s constitution – the article recently used to remove a democratically elected Prime Minister – disqualifies from membership in parliament anyone who,

“has been convicted by a court of competent jurisdiction for propagating any opinion, or acting in any manner, prejudicial to the ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or morality, or the maintenance of public order, or the integrity or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan.”

If Justice Brandeis’s maxim about sunlight being the best disinfectant is true, it should apply to all institutions equally. Only by opening national institutions to public oversight can governments limit abuse and scandal. By placing the judiciary and the military outside the realm of criticism, Pakistan is facilitating the very outcomes that it hopes to prevent – scandals and suspicions that threaten the reputation of critical national institutions.

Pakistan’s “Suprema Lex”

Pervez Musharraf and Chief Justice Iftikhar Chaudhry

The English-langauge daily Dawn reports today that a sense of foreboding has taken over Islamabad, where politicians and analysts fear the possibility that Pakistan could be heading towards an extended caretaker government – what some call the “Bangladesh model” after that country’s flirtation with unelected technocratic governance in 2006. Such a move would require validation from the Supreme Court, though, raising questions about whether the current Court would give sanction to such a measure. Unfortunately, there is reason to believe they might.

Pakistan’s Chief Justice, Iftikhar Chaudhry, is best known as the man who was removed from the bench and placed under house arrest by Gen. Pervez Musharraf in 2007. What is less often remembered, though, is Iftikhar Chaudhry’s role in facilitating Gen. Musharraf’s 1999 coup against the democratically elected PML-N government, and his giving sanction to Gen. Musharraf’s changes to the constitution in 2002.

In 1999, Gen. Pervez Musharraf deposed then Prime Minister Nawaz Sharif’s government in a military coup and promulgated the Provisional Constitutional Order (PCO) of 1999 declaring a state of emergency and suspending the Constitution. Gen. Musharraf ordered judges to take a new oath under the PCO, which many refused. Iftikhar Chaudhry was not one of them. In 1999, Iftikhar Chaudhry chose to take an oath of allegiance to Gen. Musharraf’s new military dictatorship.

Some might argue that Chaudhry was only doing what he had to in order to maintain a check on the new dictator, but this wasn’t the last time that Iftikhar Chaudhry gave judicial cover to Gen. Musharraf’s exploits. In 2000, Justice Chaudhry joined the Supreme Court in dismissing challenges to Gen. Musharraf’s coup. The Court, in its own words, “validated the extra-constitutional step on the touchstone of the doctrine of state necessity and the principle of salus populi suprema lex [trans. “Let the good of the people be the supreme law”].”

In 2002, Justice Chaudhry again joined the Supreme Court’s decision to dismiss petitions against Gen. Musharraf’s 2002 Legal Framework Order (LFO) which amended the constitution to, among other things, give Gen. Musharraf the power to dissolve parliament at will.

In 2005, Justice Chaudhry was one of five Supreme Court justices who voted to uphold Gen. Musharraf’s 17th Amendment to the Constitution, further giving judicial cover to exta-constitutional measures.

Justice Chaudhry’s long history of validating Gen. Musharraf’s extra-constitutional measures has led to the perception among some that he is a military stooge, and that his battles with Pakistan’s current democratically elected government are a sign that he is facilitating a “judicial coup” at the military’s behest. Things are not so simple.

Justice Chaudhry’s support for Gen. Musharraf’s dictatorship earned him the position of Chief Justice in 2005, but his independence earned him a suspension only two years later when he began to find against the military government. In one of many political missteps by the military dictator, Gen. Musharraf placed Chaudhry and his entire family under house arrest, making Chaudhry a political martyr and expediting his own downfall.

After being reinstated by President Asif Zardari, Justice Chaudhry has continued to use the court not only as a tool against civilian officials, but against Pakistan’s military intelligence agencies, publicly taking them to task for illegally detaining terror suspects. This is often cited by the Chief Justice’s supporters as further proof of his independence.

Whether or not Iftikhar Chaudhry is colluding with the military or not is the wrong question. The right question is whether he is acting within the constitutional confines of his own institution. Unfortunately, several of his past legal decisions suggest Justice Chaudhry subscribes to a jurisprudence that does not recognize constitutional confines, instead seeing his role as an independent political activist.

Justice Chaudhry claims that he no longer supports the “doctrine of necessity,” but with the introduction of the “basic structure doctrine,” he may no longer need it. The Chief Justice now has a tool that not only allows him to interpret the Constitution, but to define it.

As Pakistan proceeds towards national elections next March, Chief Justice Iftikhar Chaudhry has the opportunity to demonstrate whether he really has turned his back on the “doctrine of necessity”, or if his recently stated belief that “We should only examine our own constitution to ensure that the will of the people prevails,” indicates that he still sees himself as the guardian of salus populi suprema lex. For the sake of Pakistan’s democracy, we hope it is the former.

Institutions and Individuals: Battle for Supremacy in Pakistan

Much is written about the struggle for supremacy between Pakistan’s civilian and military institutions. But Pakistani democracy is currently suffering from another power struggle – one between civilian institutions. During the past few years Pakistan has seen the rise of the Supreme Court as a new contender in the struggle for domestic power. Increasingly, however, conflicts between the judiciary and other branches appear to be battles between individuals rather than institutions.

After the controversial retroactive disqualification of former Prime Minister Yusuf Raza Gilani by the Supreme Court, Pakistan’s parliament this week passed a bill to amend the Constitution to grant immunity from contempt of court charges to certain government officials in anticipation of the court’s using the threat of contempt as a means of forcing the executive branch to enforce its orders. Supporting this concern is the court’s order to the new Prime Minister to respond by July 12th to their order that a letter be written to Swiss authorities reopening corruption cases against President Asif Zardari. The executive  branch continues to insist that they are constitutionally prohibited from following the court’s order as the president enjoys immunity during his term in office, and legal analysts describe the Prime Minister as being caught in a “contempt trap.”

Opposition politicians are predictably against the bill. Ahsan Iqbal of the Pakistan Muslim League – Nawaz (PML-N) said in a press release that the bill is part of a political strategy to protect the president from corruption charges, despite the PML-N’s having passed a similar bill when it was in power in 1997 and PML-N President and then Prime Minister Nawaz Sharif was facing similar battles with the Chief Justice at the time, Sajjad Ali Shah. Syed Munawar Hasan and Imran Khan, leaders of the Jamaat-e-Islami and Pakistan Tehreek-e-Insaaf political parties, called the amendment un-Islamic.

The lack of trust between parliament and the judiciary is mutual, though. While Pakistani parliamentarians were discussing how to reign in judicial oversight, Pakistan’s Supreme Court announced that judges were beyond the oversight of parliament. Neither is the first time that the Supreme Court has bristled at the prospect of parliamentary checks on its members. When parliament passed the 18th Amendment devolving powers that had been consolidated under past military dictators, the Supreme Court objected to a provision of the bill that created a new inter-institutional commission to nominate justices. Previously, new justices were selected by the Chief Justice himself. In a bizarre move, the Supreme Court began hearings on whether the unanimously passed constitutional amendment was unconstitutional for violating the “basic structure” of the constitution – an ambiguous set of unwritten principles that would essentially give the Supreme Court veto power over any act of parliament. Ultimately, the Supreme Court punted on the question, asking parliament to clarify certain aspects of the judicial commission and leaving the “basic structure” issue hanging over parliament.

As parliament prepared to take up the constitutional amendment limiting the court’s power to remove officials with contempt convictions, Chief Justice Iftikhar Chaudhry may have hinted at the return of the “basic structure” doctrine. Speaking at a ceremony for newly enrolled Supreme Court advocates last weekend, the Chief Justice referred to a “misconception in the minds of people regarding supremacy of parliament,” adding that the Supreme Court is empowered “to strike down any legislation which encroached upon the basic rights of the citizens.”

The framers of the US Constitution anticipated that the personal ambition of officeholders would lead to attempts to encroach on the powers of other institutions. This led to the implementation of a complex system of “checks and balances” to ensure that no one institution could assert itself as supreme to any other.

To maintain stability, governments must follow rules and procedures written for institutions, not individuals. Asif Zardari will not be president forever, nor is Iftikhar Chaudhry Chief Justice for life. As Pakistan navigates current controversies, officials from all branches of government should look for solutions that will hold up no matter who is President, Prime Minister, or Chief Justice.

Pakistan Political Report – Reopening the GLOCs

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DCC Approves Reopening of NATO Supply RouteThe agreement to reopen the ground lines of communication (GLOCs) into Afghanistan will result in short-term gains for both the US and Pakistan, but does not represent a fundamental change in bilateral relations. Richard Hoagland, Deputy Chief of Mission for the US Embassy in Islamabad, described the status of relations after the apology as resumption from the point where they have been left prior to the Salala incident last November.[1]

While Sec. Clinton’s apology did not result in a radical transformation, it did open a way forward. Vali Nasr, dean of the Paul H. Nitze School of Advanced International Studies at Johns Hopkins University, characterized the agreement as validating the path of diplomacy over confrontation, and Pakistan’s Ambassador to the United States, Sherry Rehman, acknowledged that there is “a long road ahead,” but expressed hope that “both sides can use this opportunity to build a path to durable ties.” [2],[3] Unfortunately, building that path will not come without resistance.

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