Tag Archives: constitution

Pakistan’s Crisis Threatens Millions In Military Aid

Gen Raheel Sharif and PM Nawaz Sharif

Earlier this year, the US announced plans to provide $280 million in military aid to Pakistan, but that may be cut to zero based on the way the country’s political crisis is taking shape.

The Foreign Assistance Act “restricts assistance to the government of any country whose duly elected head of government is deposed by military coup or decree.” Over the past week, a military coup has become a distinct possibility, if not a fait accompli.

The head of Pakistan’s Army, General Raheel Sharif (not relation to the Prime Minister, Nawaz Sharif), publicly intervened in Pakistan’s ongoing political crisis late Thursday night. According to a report in The Wall Street Journal, “The move follows a backroom political deal that government officials privately said ceded important powers over defense and foreign policy from the government to the military.”

While this may be the first time the Army has entered the public light, reports as far back as ten days ago described the military using the protests as leverage to seize political power.

As tens of thousands of protesters advanced on the Pakistani capital last week to demand his resignation, Prime Minister Nawaz Sharif dispatched two emissaries to consult with the army chief.

He wanted to know if the military was quietly engineering the twin protest movements by cricket star-turned-politician Imran Khan and activist cleric Tahir ul-Qadri, or if, perhaps, it was preparing to stage a coup.

According to a government insider with a first-hand account of the meeting, Sharif’s envoys returned with good news and bad: there will be no coup, but if he wants his government to survive, from now on it will have to “share space with the army”.

If these reports are accurate, the Army would appear be attempting to carry out a “soft coup” – one that involves a transfer of power without the typical show of military force.

As Gen. Raheel stepped into the public spotlight as a mediator, Pakistan’s press reported that he was doing so at the request of the Prime Minister, a claim the Prime Minister has since publicly denied. Article 245 of Pakistan’s Constitution does permit the federal government to direct the Armed Forces to “act in aid of civil power,” but the real test will be the outcome. Whether or not the military can come to the aid of the federal government, Pakistan’s Constitution makes no provision for any transfer of power from democratically elected offices to the military, nor does it provide for “sharing space.”

Any military intervention in Pakistan’s government will have serious and debilitating consequences. A coup, not matter how “soft,” will set back democratic gains made over the last seven years by decades, severely jeopardizing the likelihood that Pakistan will be a modern, democratic country for the foreseeable future.

The military, too, stands to lose – both in resources and reputation. Gen. Raheel’s predecessor, General Ashfaq Parvez Kayani, skillfully began rehabilitating the military’s relationship with the United States and its reputation as a threat to democratic order. The new military leadership’s decisions in the next few days could undo all of that progress – as well as cost them $280 million.

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.

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.

Questions Surround New Supreme Court Order Disqualifying Prime Minister

Yousuf Raza Gilani

The Supreme Court of Pakistan removed the Prime Minister in what is known as a “short order” – essentially a court order lacking a full explanation. These orders often begin, “For reasons to be recorded later…” – a practice that seems the beg for abuse and controversy – and then proceed directly to ordering some specific action on the part of an individual or institution. In this case, though, the specific action was not given until almost two months later – and made retroactive.

On April 26, the Supreme Court issued an order “for the reasons to be recorded later” that found then Prime Minister Yousaf Raza Gillani “guilty of and convicted for contempt of court.” The Supreme Court did not declare the Prime Minister disqualified from office and sentenced him to a symbolic detention of about 30 seconds.

The Supreme Court having chosen not to disqualify the Prime Minister, the issue was then taken up by the Speaker of the National Assembly, Dr. Fehmida Mirza, who ruled that Mr. Gilani was not disqualified. That was last month.

Today, nearly two months after the Supreme Court issued its controversial conviction, a new short order, “for reasons to be recorded later,” was issued by Chief Justice Iftikhar Chaudhry – this time declaring that “Syed Yousaf Raza Gillani has become disqualified from being a Member of the Majlis-e-Shoora (Parliament)…on and from the date and time of pronouncement of the judgement of this Court dated 26.4.2012…”

This raises several very interesting questions. If the Prime Minister was disqualified pursuant to the Supreme Court’s order on April 26, why did they wait until June 19 to say so? Some have suggested that the Supreme Court was giving the Prime Minister the opportunity for appeal, but this is doubtful for a number of reasons: One, the Supreme Court could have declared the Prime Minister disqualified and then stayed the order pending appeal. But more to the point, to whom would the Prime Minister have appealed? The original order was given by a 7 member bench of the Supreme Court – there was no higher authority to appeal to.

Then there is the matter of the ruling by the Speaker of the National Assembly. If the Supreme Court had determined that Mr. Gilani was disqualified as of April 26, why did they allow Dr. Mirza to proceed with deliberations and a ruling on Mr. Gilani’s status as parliamentarian? If the Supreme Court believed that Dr. Mirza did not have the authority as Speaker of the National Assembly to issue such a ruling, why did they not issue an injunction stopping the Speaker from carrying out the act?

While these questions remain unanswered, at least until the Supreme Court delivers more than the two pages made available today, they suggest very troubling possibilities. By allowing Mr. Gilani to continue serving as Prime Minister for months, the Supreme Court has created a policy nightmare for Pakistan. Making the disqualification retroactive to April 26 means that any decisions made by the government since are effectively nullified. Pakistan has, essentially, been operating without a government for over 8 weeks.

Moreover, by allowing the Speaker of the National Assembly to deliberate and issue a ruling without comment, only to nullify that decision weeks later, the Supreme Court has undermined the authority of parliament and created confusion about fundamental issues of separation of powers and constitutional authority. What government official can now carry out their duties without the fear of Supreme Court action if the Chief Justice does not like the outcome.

This gets to what is perhaps the most troubling question of all – would the Supreme have issued this new order had the Speaker of the National Assembly herself disqualified Mr. Gilani? In other words, is Pakistan’s Supreme Court acting pursuant to due process or desired outcomes?

President Zardari Calls for Review of Blasphemy Laws

President Asif Ali Zardari

Pakistan’s President, Asif Ali Zardari, called for a full review of Pakistan’s blasphemy laws and necessary action taken to protect the rights of religious minorities reports the English-language daily Dawn.

MPA Pitanbar Sewani, speaking at the meeting on ‘Communities vulnerable because of their beliefs’, organised by the Human Rights Commission of Pakistan, said the president had responded to a point raised by him during a meeting held at the Sindh Chief Minister’s House.

He said he had raised the issue with the president that the blasphemy law was being misused and was a cause of harassment to the minorities and that it might be amended.

He said the president said: “The federal government may examine it and take necessary action.” And that action on this was to be taken by the federal law minister.

President Zardari has been a vocal supporter of women’s rights and the rights of religious minorities during his two-year tenure. Speaking on ‘Minorities Day’ in August, President Zardari reminded people of the sacrifices made by Pakistan’s minorities and their vital role in founding and building the nation.

“The Quaid’s vision is contained in his historic speech on this day in 1947 that laid down the foundations of a modern, tolerant and progressive Pakistan in which everyone will have equal rights regardless of creed and gender.”

In his 1947 address to the Constituent Assembly of Pakistan, Pakistan’s founder, Muhammad Ali Jinnah, stated that, “the first duty of a government is to maintain law and order, so that the life, property and religious beliefs of its subjects are fully protected by the State.” He went on to express a vision of Pakistan’s future in which “all these angularities of the majority and minority communities…will vanish,” and made clear his belief that Pakistan was founded on the principle that “there is no discrimination, no distinction between one community and another, no discrimination between one caste or creed and another.”

President Zardari’s call for a review of the blasphemy laws and the protection of religious minorities demonstrates a courageous political move amidst increasingly violent threats from Pakistan’s right-wing religious lobby. That his call to action is a reflection of the vision of Pakistan’s founding father Muhammad Ali Jinnah is not lost on the world community, and we fully support President Zardari’s move to protect the rights all of Pakistan’s citizens equally under the law.

Pakistan's Blasphemy Laws Institutionalize Injustice

Pakistanis protest the country's blasphemy laws

The case of Asia Bibi has commentators in Pakistan’s media speaking out against the nation’s blasphemy laws, archaic leftovers from Gen. Zia-u-Haq’s dictatorship in the 1980s – a relic more of Zia’s strategy to secure his grip on power than any personal religious zeal.

While no legal execution has occured under these laws, dozens of individuals are sitting on death row, and over a thousand people have been convicted of violating these laws. Worse, the laws are often used to justify violent acts of vigilantism. The threat of accusation, conviction and death hangs over the heads of Pakistan’s religious minorities.

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Pakistan's Constitution Must Be Amended To Remove Sectarian Clauses

The murders of over 90 Pakistani citizens last week because of their religious beliefs makes clear that Pakistan’s parliament must amend the Constitution to remove sectarian clauses that in part incite such violence.

Section 260(3) of Pakistan’s constitution defines whom the law considers a Muslim. This is exceedingly important because the constitution restricts certain government offices to Muslims. For example, Section 41(2) requires that the President be “a Muslim of not less than forty-five years of age.”

But more than simply disenfranchising some citizens, the sectarian clauses in the constitution have created second-class citizens of religious minorities, and given fodder for the hateful rhetoric of extremists that encourages such violence as was witnessed last Friday.

In fact, the massacre of the Ahmadis was not the first time that a religious minority has suffered violent attack in recent months. Last August, religious extremists attacked a community of Christians in Gojra, killing many and burning down several dozen homes.

Pakistan’s parliament and President Zardari were quick to condemn the attacks in Gojra and provide funding to compensate victims, but until the government purges the aberrant laws that extremists use to justify these attacks, future violence is all but inevitable.

Cornell doctoral student Basit Riaz Sheikh, agrees. Writing for English-language daily, Express Tribune, Sheikh notes that the sectarian tensions that increasingly flare up today are rooted in the regime of dictator Zia-ul-Haq.

Until 1977, when Bhutto’s government was toppled, Pakistan was free of any major sectarian and ethnic tensions. The ten years of Zia-ul-Haq’s dictatorial regime would transform Pakistan from a tolerant society into one marred with ethnic and sectarian divisions and hate-driven politics. He fully crippled the religious freedom of minorities by imposing draconian laws in the name of the Anti-Islamic-Activity Act. Zia vanished, but we continue to pay for his sins.

The remnants of his era, in the shape of many in our media now and others, continue to insinuate hatred against minorities, the West, and all others who disagree with them. It goes beyond my imagination that we let these hate-mongers freely express their extremist sentiments on TV channels under the pretext of freedom of speech. Freedom of speech doesn’t mean freedom to spread hate.

To build a stronger and a united Pakistan, we need to cleanse our constitution of the provisions that continue to divide us.

The US Commission on International Religious Freedom has recognized the Zardari government’s progress in the area of religious freedom in Pakistan, but points out that until discriminatory legislation promulgated by previous administrations is removed, religious minorities will continue to suffer.

The Zardari government has taken some positive steps regarding religious freedom. In November 2008, the government appointed prominent minority-rights advocate Shahbaz Bhatti as Federal Minister for Minorities with cabinet rank. Mr. Bhatti has publicly promised that the Zardari government will review Pakistan’s blasphemy laws and that the government is committed to protecting the rights of minority religious communities, including by implementing a five percent quota for religious minorities in federal government employment. In March 2009, the government appointed a Christian jurist as a judge in the Lahore High Court. It is not yet clear what impact these developments will have on religious freedom, which has been severely violated by successive Pakistani governments in the past. Discriminatory legislation, promulgated in previous decades and persistently enforced, has fostered an atmosphere of religious intolerance and eroded the social and legal status of members of religious minorities, including Shi’a Muslims, Ahmadis, Hindus, and Christians.*

Article 33 of Pakistan’s constitution requires the state to “discourage parochial, racial, tribal, sectarian and provincial prejudices among the citizens.” This vital mission of the government cannot be achieved while sectarian prejudice is codified in the nation’s laws. In order to protect the rights and the safety of all citizens, Pakistan’s Parliament should immediately move to amend the constitution by removing Section 260(3) and other sectarian laws.


*Emphasis added

Judiciary Threatening Stability of Pakistan's Emerging Democracy

A recent episode of Pakistani television talk show Merey Mutabiq included a disturbing conversation with Qazi Anwar, President of Pakistan’s Supreme Court Bar Association, in which several troubling assertions were made including that the parliament does not have the power to amend the constitution, and that the Supreme Court has the privilege of striking down any part of the constitution of which it disapproves. The proliferation of such statements and actions by justices and advocates of the Supreme Court are deeply troubling, and pose a potential threat to the stability of Pakistan’s emerging democracy.

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Pakistan's Senate Passes Historic 18th Amendment, Sends Democratization Bill to President

Pakistan's National Assembly

Following the National Assembly’s passage of the 18th Amendment package of constitutional reforms, Pakistan’s upper house Senate approved the measure this morning, sending it to President Zardari for ratification. This historic event is culmination of unprecedented cooperation and consensus between Pakistan’s political parties.

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