Tag Archives: Waris Husain

Protecting Pakistan’s Journalists

Khyber Union of Journalists and Peshawar Press Club Protest Violence Against Journalists

Pakistan has always been a dangerous place for journalists, but threats to their safety have never been as multifaceted as they are today. Some of these threats arise from the state itself, or its institutions, which try to monopolize the rhetoric and narrative on certain “sensitive issues.” But the most dangerous of them come from extremist groups. These groups have the same interest as the military in controlling the national narrative on certain issues. Unlike the military, these groups have a far more expansive list of journalist no-no’s, which, if breached, warrant an immediate green-light for murder.

The Pakistani government responded to the attack on Hamid Mir by setting up a judicial probe commission. Often, these commissions can keep their findings confidential and inaccessible to the public at large. Other times, if a victim survives an attempt on their life, they can be provided ad hoc and provisional police protection at the discretion of the provincial police service. However, there are no institutionalized mechanisms journalists rely upon to guarantee their long-term safety.

Continue reading

US ‘cautiously optimistic’ about Nawaz Sharif

Waris HusainAs the dust settles on Pakistan’s elections, Nawaz Sharif is gearing up to lead the country for a third time, and experts in Washington seem to be feeling cautiously optimistic. Many US-Pakistan experts expressed relief that Sharif won over Imran Khan, weighing Khan’s proposed hardline policy with the US and his lack of foreign policy experience in contrast to Sharif. At the same time, analysts realize that the dynamics of the US-Pakistan relationship will change under Sharif’s administration, as he will be more likely to push back against US demands than the People’s Party. This new dynamic will require the US to pursue a tactical relationship that is cognizant of both the shared and dissimilar interests of the two countries, potentially leading to greater stability.

Continue reading

Q&A: Contempt Charges Against Pakistan’s Prime Minister?

Pakistan's Prime Minister Yousaf Gilani

The latest battle between Pakistan’s elected officials and its judiciary heated up this week when the Supreme Court announced plans to indict the Prime Minister on charges of contempt of court. We wanted to find out what’s behind the latest battle, so we asked comparative law specialist and features writer for Dawn, Waris Husain, for some insight and he was gracious enough to accomodate us.  

Q: The New York Times reported on Thursday that Pakistan’s Supreme Court has announced plans to charge the Prime Minister with contempt of court. What did the Prime Minister do, exactly?

A: The Supreme Court held in 2009 that an ordinance passed by then President Pervaiz Musharraf which gave immunity to many political figures was unconstitutional. Since the decision was handed down, the executive branch dragged its feet in implementing the court’s holding overturning that the National Reconciiliation Ordinance (NRO). President Asif Ali Zardari was one of the individuals who benefitted from the ordinance as he had been facing criminal cases in Pakistan as well as a corruption case in Switzerland. The court has continually asked the Prime Minister and other individuals to follow up with the Swiss case against President Zardari by writing a letter to Swiss authorities requesting that the case there be reinstated. The Prime Minister has not written this letter, and thus he is being held in contempt of court for not executing the court’s order.

Q: The Prime Minister’s lawyer, Aitzaz Ahsan, made an interesting observation recently. He said the Prime Minister is a government official acting under the advice of his counsel. If government officials can be held in contempt for following the advice of their lawyers, what sort of precedent does that set?

It certainly can set a dangerous precedent. In the U.S., several Supreme Court decisions allow for a president to be immune from prosecution so long as he acted in good faith at the behest of his counsel. This is to allow the President, who has to make very complex decisions at a high frequency, the ability execute the functions of his job without worrying about pending litigation. This principle is taken far further by the Pakistani constitution which guarantees absolute Presidential Immunity in Article 248. The “legal advice” Mr. Ahsan was referring to was that the Prime Minister could not write a letter to the Swiss authorities about Zardari because such an act woud violate the immunity the President enjoys.

However, the real issue at the core of the court’s order against PM Gilani is the question of who is the final judge of the constitutionality of an act. Though Ahsan raised the issue of legal counsel, the tribunal responded that Gilani could have disregarded any advice that was contrary to the court’s order. Throughout its decision, the court relies on its power of judicial review to be the ultimate decider of the constitutionality of laws, and they implicitly argue that the Executive needs to implement that decision without critically examining its legality.

What about the government’s claim that the president enjoys immunity from prosecution during his term in office? The court seems to be questioning that, but highly respected Pakistani jurists seem puzzled by this. The wording of the Constitution does seem pretty clear.

The American courts developed presidential immunity over time, finding that it was necessary in order to give the President the ability to carry on all the responsibilities he has been constitutionally tasked with. As I said earlier, Pakistan is unlike the U.S. because its constitution has an article guaranteeing absolute immunity to a sitting head of state – and the language is clear. Therefore it is striking to see the court focusing so aggressively on Gilani’s inaction in the Swiss case where the President enjoys immunity. This is partly because the general attitude of the court has been one of growing frustration at the lack of implementation of its orders by the current administration. In many ways, the court feels its credibility is being attacked by Gilani refusing to send the letter, even though doing so would seemingly violate the presidential immunity clause in the constitution.

An article published last month in The Express Tribune (The New York Times’ sister newspaper in Pakistan) reported that the so-called ‘Swiss cases’ could not be re-opened. In fact, a 2008 Reuters report quoted Geneva’s chief prosecutor, Daniel Zappelli, saying that he had no evidence to bring Asif Zardari to trial.

Yes, in fact Ahsan reported to the court’s dismay that he had confirmation from the Swiss authorities that they would not pursue the cases against Zardari.

Some argue that many, if not most, of the charges brought during the 1980s and 1990s were politically-motivated – government officials using the courts as a political weapon against their opponents.

I am not certain about the numbers, and others are far more qualified to speak on that issue than myself. However, from a legal perspective, the court has a valid point in exercising its judicial review over the NRO. The decision to grant a pardon or excuse an individual should only come after a judicial body has held some sort of hearing on the case. The NRO essentially erased all charges that existed without allowing for review by the proper judicial bodies as to whether the charges were legitimate or not – which is the duty of the courts.

It could be that many of the individuals who were accused or convicted of crimes before the NRO were actually innocent and that the charges were politically motivated, but the court attacked the random selectivity of the process. Essentially Musharraf was handing get-out-of-jail-free cards to the politicians he needed to ‘reconcile’ with, and those individuals distributed the cards to their supporters. It is possible that many of the individuals were completely innocent; however, the right to determine which were innocent and which were guilty is the right of the court, not the executive.

There were over 8,000 individuals who received amnesty under the NRO, but the only case that seems to be given any serious consideration is the one against the president. Is this just because his is a high-profile case, or is the court targeting him specifically?

I believe the court is targeting Zardari specifically, and it is also disregarding the thousands of other pending criminal cases that need to be resolved. Some will claim this had to do with a personal enmity between Zardari and Chief Justice Chaudry, as the former hesitated in reinstating the Chief Judge after Dictator Musharraf was removed. Others will claim that the court is merely attempting to assert its role in the future of the nation, and is biting back against the non-cooperation of the ruling administration.

The timing is also interesting. With Senate elections expected next month and general elections within the next year, many are asking, why now? Why not let the people have elections without tarring politicians with legal brushes in drawn out court cases.

There seems to be a perfect storm brewing with regards to the coming elections. Elections should be entered into with all the institutions working together, rather than fighting and impugning the character of potential candidates because this would not benefit Pakistan’s democratic future. However, the NRO decision was passed three years ago, and so the Supreme Court has been awaiting an adequate response from the government since then, and has not been satisfied. Much of this is due to Zardari and Gilani’s own strategy of avoiding the implementation of the court’s decision, and making the court play the waiting game. So now that the court feels that its credibility and legitimacy is on the line, it is unwilling to pull back from the confrontation now.

Nixon vs. Zardari: Presidential Gates Abound

Waris HusainMany Americans can recall the political turmoil that came with the Watergate Scandal in 1972, but few understand its correlation to events currently unfolding in Pakistan. Just as Richard Nixon was brought down from the highest seat of power through allegations of corruption, President Asif Ali Zardari is facing threats from political opposition and the Supreme Court over his involvement in Memogate. However, the major difference between the travails of Nixon and Zardari is the Pakistani military, which has historically stood as an unchecked political force willing to sabotage democratic regimes. Thus, before the U.S. turns away from Pakistan completely, Americans should understand differences between Memogate and Watergate, in order to understand the ramifications of the current controversy embroiling the nation.

The Memogate controversy has its origins in the aftermath of the Osama Bin Ladin raid, where accusations were lodged by the U.S. against the Pakistani Army and its intelligence agency, the ISI, for harboring Bin Ladin. Fearing that the military’s culpability in hiding Bin Ladin would be revealed, the military leadership purportedly asked for permission from various Arab monarchies to perform a coup.

Asif Ali Zardari purportedly concluded that the military had decided to remove him from power, and it is alleged that he had conversations with Pakistan’s Ambassador to the U.S., Hussain Haqqani. These conversations allegedly resulted in a memo being written and sent to the U.S. government asking for help in stopping a potential military coup. In exchange for the American support, the memo promised that Pakistan’s civilian government would work more aggressively to pursue a wide range of American interests.

Soon, the memo, its contents, and its source were revealed by Manzoor Ijaz, who allegedly acted as a liaison between the U.S. and Pakistan government. Hussan Haqqani resigned from his post and returned to Pakistan, and the Pakistani Parliament took notice of the issue. Concurrently, the Supreme Court of Pakistan took notice, asking petitioners to explain their claims and under what basis the court had jurisdiction. While direct allegations against Zardari or Haqqani have not been leveled by the Court, the Court’s order did note possible charges of treason for guilty parties, and Haqqani has been placed on the Exit Control List, prohibiting him from leaving the country.

“If the facts were the same in Watergate, and Nixon was caught trying to stave off a coup by the CIA, he would be lauded as a national hero...”Though the Pakistani Supreme Court has drawn on the case of Nixon v. U.S. as legal precedence for launching an inquiry on the role of the President in this controversy, one should step back and compare the acts of Zardari and Nixon. In Watergate, President Nixon and his aides hired burglars to break into a political rival’s headquarters and illegally wiretap them. Nixon and his associates thereafter tried to cover up their involvement in the scandal and paid “hush money” to the individuals arrested.

On the other hand, Zardari, an elected president, was attempting to stop an unconstitutional military coup from taking place. Rather than holding the military officers who conspired against the civilian government responsible, the media and courts seem to blame Zadari for continually attempting to ‘sell-out’ to the Americans. If the facts were the same in Watergate, and Nixon was caught trying to stave off a coup by the CIA, he would be lauded as a national hero, rather than face treason charges, as is the former Ambassador Haqqani and possibly President Zardari.

However, politics and law in Pakistan is always subject to manipulation by the Army and ISI, and Zardari knows this. This is one of the many reasons why the President refused to answer the court’s request, claiming absolute sovereign immunity. Under Article 248 of Pakistan’s Constitution, a sitting head of state is immune from criminal prosecution. Though President Nixon did not enjoy the same constitutional guarantee of immunity, the U.S. Supreme Court had granted sovereign immunity to Presidents so long as they acted within the scope of their job in good faith. The only way to punish the wrongdoing of a President, either in Pakistan or the U.S., is through impeachment by the legislative branch.

Anticipating the sovereign immunity defense, the Pakistani Supreme Court cited to U.S. v. Nixon in its Memogate order, because, in that case, the U.S. court rejected President Nixon’s blanket claim of immunity. However, it is important to note that the U.S. Supreme Court was not contemplating a criminal prosecution for President Nixon. Prosecutors had already determined that Nixon would enjoy immunity from criminal prosecution while sitting as president, but they were continuing with a case against his aides and required evidence from him. Nixon took the case to the Supreme Court, where he argued that absolute immunity protected him from being forced to produce evidence before the court, which the justices rejected.

In the end, Nixon capitulated to the court, but his resignation came in order to avoid impeachment by Congress, not because of a potential criminal prosecution. However, in Pakistan, it is not clear what the Supreme Court has envisioned for its end-game. The petitioners in the case have justified jurisdiction under Article 5 and 6, which speak to loyalty and treason. The question that must be asked: if the Supreme Court finds that Zardari is guilty of treason, what action can they take?

The American Supreme Court never considered deposing the president or putting him in jail for corruption, as the Constitution assigned this duty to the legislative branch. The same goes for Pakistan, where the Parliament enjoys the exclusive constitutional right to impeach the president, a power which the Supreme Court does not possess.

“Pakistan’s military has always been a looming shadow willing to stunt the growth of democratic governance and snatch up power.”Finally, the consequences of any destabilization of Pakistan’s civilian government are far graver than in America, even in the chaos of the 1970s. Unlike the U.S., Pakistan’s military has always been a looming shadow willing to stunt the growth of democratic governance and snatch up power. There is certainly no love-loss between Zardari’s Administration and the military, especially considering last weeks’ statements by Prime Minister Gilani rejecting the Army’s status as a “state within a state.” Therefore, while the chorus of disapproval for Zardari from political opponents and the Court resembles the sound of democracy, they are all playing the military’s tune. And the Army stands in the wings ready to enjoy the rewards of toppling another civilian government.

In the meanwhile, the United States has halted most of its aid to Pakistan, as trust for the nation is wearing thin from the White House to Capitol Hill. However, before turning a cold shoulder to the nation as a whole, it is imperative to note that it is not democratic institutions which control foreign policy in Pakistan, but the military. Most of what the U.S. bemoans about Pakistan being duplicitous or sabotaging American attempts to reconcile with the Taliban emanate as strategies from the military.

Political analysts have not found a common interest shared by the U.S. and Pakistan because they have failed to delineate the civilian from the military power structures. If one realizes that the U.S. and the civilian government are both being sabotaged by the military, then abandoning the nation completely as an ally seems impractical. It is through comparisons like Watergate and Memogate that one understands the benefit of a having democracy free from the will of an unelected army. But more importantly, it should bolster America’s resolve to contribute civilian aid to a government in crisis, not because it is the most capable or most transparent government in history, but because the other option has been tried before and is so much worse.

The writer holds a Juris Doctorate in the US and is a researcher on comparative law and international law issues.