Pakistan´s Judiciary and Transnational Implications
Rizwan Ghani
March 14, 2008
In response to Musharraf´s agenda for new govt. outlined in Multan promising continuation of current foreign policy, support for war against terrorism and economic policies the Nawaz Sharif´s statement in press conference following Murree Declaration is self explanatory. Nawaz Sharif said that national and foreign policy would be made collectively. The resolution on judges´ issue in Murree Declaration has domestic and transnational implications.
On domestic front, the implementation of approved hallmark declaration of reinstatement of deposed judges as part of judiciary´s independence could be history in country´s struggle for strengthening of institutions, end of dictatorship and return of democracy. In the independent judiciary lies the hope to end corruption in public and private sector, and individual level that is compromising country´s progress beyond repair.
If history is a judge, the debate over methodology of reinstatement of judges is irrelevant at this stage. Pakistan was created with the passage of a simple resolution proposed by Allama Iqbal in 1940. The Resolution succeeded because it represented aspirations of the Muslims of the subcontinent. It is therefore opined that judges case could well be settled more in step with public aspirations and party manifestoes of political parties than legal merits itself.
The rub however lies in methodology. The deposed judges could be restored through a simple resolution in the parliament, an executive order or judges could simply be ´walked back´ to their posts based on logic of Doctrine of Necessity (DON). After all, if DON have worked for powerful dictators since creation of Pakistan, nothing stops judges return who are backed by politicians enjoying power of popular mandate. Pakistan could be witnessing poetic justice however politics is the art of possible- may it Musharraf, political parties or both.
On the international front the fate of Pakistan´s judiciary hold key to the future of Bush´s war against terrorism, his allies and upholding of national and international laws, conventions and rights. In wake of difference of Musharraf and Nawaz Sharif´s statements showing policy differences, the reinstatement of deposed judges will be a legal tsunami. It could jeopardize entire edifice of war against terrorism that Bush, Republicans and pro-Bush leadership have used in last eight years to stay in power and plan to use it for their vested stakes in upcoming US presidential election. In all probability use of force in Afghan region, Persian Gulf coupled with trail of ´board of directors and their executive´ by military courts cannot be ruled out between July to September 2008.
Return of judiciary in Pakistan could initiate implementation of law of the state that could set precedents for voices within US seeking Bush´s impeachment, and those of George Galloway seeking Blair´s accountability. Furthermore, it could set precedent for embattled judiciaries in other parts of the world including Manila, Kabul, Mogadishu, Nairobi, London and America itself.
There are similarities in Bush and Musharraf´s policies in terms of systematic undermining of judiciary, media and relevant national and international laws, conventions and human rights. Guantanamo prison is a violation of US and international laws. According to Senator Atizaz Ashan Musharraf has turned judges´ colony Islamabad into a private jail where twelve superior court judges including country´s chief justice of Pakistan and their families including children are held under illegal custody for last four months. International community, human rights watch groups and global civil society has not only failed to condemn this blatant violation of country´s law and constitution but has also failed to convince concerned authorities to extend legal rights to jailed and ousted judges. The failure of advanced world including US to condemn ouster of some sixty judges of country´s superior judiciary including chief law officer reflects their double standards. It has adversely affected America's image in the eyes of ordinary people in Pakistan.The country legal system has virtually come to standstill since March 9 2007. The legal fraternity backed by public is continuing with its struggle for the restoration of independence of judiciary for last one year. In the Black Flag Week that started on 9 March 2008 the legal fraternity, civil society and people from all walks of life have demanded release of judges, restoration of independence of judiciary and accountability.
http://www.dailytimes.com.pk/default.asp?page=2008314story_14-3-2008_pg7_17.
Bush retired nine US district attorneys for allegedly upholding country´s constitution. He implemented media blackout over Iraq through Freedom of Information Act (FOIA). The current flak over water boarding and role of US Attorney General (AG) shows the gap between Bush´s undermining of country´s constitution, institutions and respecting universal human rights. The stand of US attorney general over water boarding and other violations of US constitution reflects erosion in the office of UA AG office that is custodian of public interests. Reportedly, US, London and Islamabad have not ratified European Convention of Human Rights and UN Human Rights Charter, which allows these leaders to manipulate laws with impunity. It is hoped new American president and Pakistan will ratify the UN Human Rights charter.
Bush´s latest veto of torture bill is another case in point. It has been termed as ´continuation of his legacy´ by mainstream US media including New York Times dated Mar. 9 (Bush´s veto of CIA bill affirms his legacy). The veto has global political, legal and constitutional repercussions. Reportedly, the defense committees of both US Houses approved a military manual that bars water boarding. The law therefore mandates Bush, CIA and military commanders to respect the manual. The veto shows Bush´s disdain for country´s constitution, lawmakers and democratic will of the American people.
Bush has been rejecting recommendations supporting use of judiciary and existing legal and peaceful means including use of police to fight anti-state elements (or so called terrorism). Awami National Party (ANP) leadership that is going to form government in NWFP in its statements has rejected use of force. Instead, it has support use of existing law enforcement setups, intelligence and judicial system to eradicate anti-state elements. There are strong apprehensions that creation of special elite force will turn the province into a police state. The creation of elite forces to tackle terrorism in third world countries brings their own set of problems for local population. The Malaysian elite force excesses are case in point. The ordinary people blame west for abuses of such setup. NWFP should not allow creating of similar setup to avoid turning the province into a police state. There is a growing consensus in West and US media that existing courts and state law and order setups can deliver.
In all probability despite advice to the contrary-try terrorists in ordinary courts to uphold norms of justice- Washington is all set to try terrorists in military courts instead of civil courts. In case US military courts will hold trials of anti-state elements, it will set a precedent for third world countries. It will give dictators and repressive regimes from rest of the world a free hand to undermine their local constitution, use law for personal gains, political victimization and undermine freedom of judiciary and media, which in turn will fuel discontentment and hatred for advanced world. Africa, ME and Asia are cases in point.
Reportedly, Bush is all set to veto Surveillance Bill in a standoff with US lawmakers who want to scrap the bill to end an era of unauthorized bugging of ordinary people´s phone conversations, internet traffic including e-mails, blogs, chats etc. The US Constitution including Bill of Rights mandates court orders for such activities. Reportedly, almost all pro-Bush regimes across the world have resorted to similar illegal practices. In case the Bill is vetoed, it will be a great setback to universal individual rights, freedom of speech and right to self-protection. It is opined that due to immense pressure of mobile and internet service providers Bush may actually veto the Surveillance Bill to protect the service providers from impending lawsuits for their alleged involvement in illegal activities http://www.bloomberg.com/apps/news?pid=20601103&sid=aqKD1xL9Q3i8&refer=us.
Islamabad needs to review its foreign policy and support for war against terrorism because people of Pakistan have voted against Musharraf´s Afghan policy, role as non-NATO ally and cooperation in Bush´s war against terrorism. Pakistan must withdraw as non-NATO ally and refuse Para-military training offer to avoid recent Japan, Manila like situations where local were raped by foreign forces. Similarly avoid situation where locals not only stood up against foreign forces but in case of Somalia and ME the foreign force bases were attacked also.
In Pakistan´s case, the Bush-Musharraf flawed policies could jeopardize country´s working relations with US. Pakistan´s security setups are capable to handle all kinds of training needs. In case of urgent need the training could be given in US. Islamabad and Washington must respect policy of new NWFP govt., which reportedly has already spelled out its policy- of using dialogue, economic incentives and extension of political parties act- to restore peace and stability in the province. Otherwise also use of brute force in last six years in Afghanistan, surrounding areas, and rest of the hotspots has been counterproductive.
Policy change is also important because NATO Afghan mission has failed. NATO member have withdrawn their support including Australia because Bush changed Afghan reconstruction missions to full-scale military operation for vested interests. Pakistan instead should seal its Afghan border to avoid the spillover and deny Republicans to use Afghanistan chaos in upcoming US presidential election.
Undoubtedly, independent judiciary is of critical importance for Pakistan to end corruption, improve institutional stability and restore true democracy. But since its restoration is likely to restore respect of law that will undermine Bush´s unlawful war against terrorism therefore in all probability it will be an uphill struggle for Pakistan for now to see reinstatement of deposed judges as part of restoration of independence of judiciary. It also explains West´s double standards when it comes to supporting third world countries in their battles to strengthen democracy, democratic institutions including judiciaries, media and accountability.
Finally, it is hoped that Pakistan remain united in its struggle for the restoration of judiciary to help bring true democracy, end culture of subverting country´s constitution and imposing dictators for vested interests. Hopefully parliament, executive and judiciary will respect public mandate and Pakistan´s constitution. Independent judiciary is the custodian of a stable and strong Pakistan. Similarly, it is also hoped that West respects will of public, law and sovereignty of Pakistan to maintain positive and long-term working relationship with the country. A stronger democratic Pakistan best serves national domestic and international interests if only it is realized.
On domestic front, the implementation of approved hallmark declaration of reinstatement of deposed judges as part of judiciary´s independence could be history in country´s struggle for strengthening of institutions, end of dictatorship and return of democracy. In the independent judiciary lies the hope to end corruption in public and private sector, and individual level that is compromising country´s progress beyond repair.
If history is a judge, the debate over methodology of reinstatement of judges is irrelevant at this stage. Pakistan was created with the passage of a simple resolution proposed by Allama Iqbal in 1940. The Resolution succeeded because it represented aspirations of the Muslims of the subcontinent. It is therefore opined that judges case could well be settled more in step with public aspirations and party manifestoes of political parties than legal merits itself.
The rub however lies in methodology. The deposed judges could be restored through a simple resolution in the parliament, an executive order or judges could simply be ´walked back´ to their posts based on logic of Doctrine of Necessity (DON). After all, if DON have worked for powerful dictators since creation of Pakistan, nothing stops judges return who are backed by politicians enjoying power of popular mandate. Pakistan could be witnessing poetic justice however politics is the art of possible- may it Musharraf, political parties or both.
On the international front the fate of Pakistan´s judiciary hold key to the future of Bush´s war against terrorism, his allies and upholding of national and international laws, conventions and rights. In wake of difference of Musharraf and Nawaz Sharif´s statements showing policy differences, the reinstatement of deposed judges will be a legal tsunami. It could jeopardize entire edifice of war against terrorism that Bush, Republicans and pro-Bush leadership have used in last eight years to stay in power and plan to use it for their vested stakes in upcoming US presidential election. In all probability use of force in Afghan region, Persian Gulf coupled with trail of ´board of directors and their executive´ by military courts cannot be ruled out between July to September 2008.
Return of judiciary in Pakistan could initiate implementation of law of the state that could set precedents for voices within US seeking Bush´s impeachment, and those of George Galloway seeking Blair´s accountability. Furthermore, it could set precedent for embattled judiciaries in other parts of the world including Manila, Kabul, Mogadishu, Nairobi, London and America itself.
There are similarities in Bush and Musharraf´s policies in terms of systematic undermining of judiciary, media and relevant national and international laws, conventions and human rights. Guantanamo prison is a violation of US and international laws. According to Senator Atizaz Ashan Musharraf has turned judges´ colony Islamabad into a private jail where twelve superior court judges including country´s chief justice of Pakistan and their families including children are held under illegal custody for last four months. International community, human rights watch groups and global civil society has not only failed to condemn this blatant violation of country´s law and constitution but has also failed to convince concerned authorities to extend legal rights to jailed and ousted judges. The failure of advanced world including US to condemn ouster of some sixty judges of country´s superior judiciary including chief law officer reflects their double standards. It has adversely affected America's image in the eyes of ordinary people in Pakistan.The country legal system has virtually come to standstill since March 9 2007. The legal fraternity backed by public is continuing with its struggle for the restoration of independence of judiciary for last one year. In the Black Flag Week that started on 9 March 2008 the legal fraternity, civil society and people from all walks of life have demanded release of judges, restoration of independence of judiciary and accountability.
http://www.dailytimes.com.pk/default.asp?page=2008314story_14-3-2008_pg7_17.
Bush retired nine US district attorneys for allegedly upholding country´s constitution. He implemented media blackout over Iraq through Freedom of Information Act (FOIA). The current flak over water boarding and role of US Attorney General (AG) shows the gap between Bush´s undermining of country´s constitution, institutions and respecting universal human rights. The stand of US attorney general over water boarding and other violations of US constitution reflects erosion in the office of UA AG office that is custodian of public interests. Reportedly, US, London and Islamabad have not ratified European Convention of Human Rights and UN Human Rights Charter, which allows these leaders to manipulate laws with impunity. It is hoped new American president and Pakistan will ratify the UN Human Rights charter.
Bush´s latest veto of torture bill is another case in point. It has been termed as ´continuation of his legacy´ by mainstream US media including New York Times dated Mar. 9 (Bush´s veto of CIA bill affirms his legacy). The veto has global political, legal and constitutional repercussions. Reportedly, the defense committees of both US Houses approved a military manual that bars water boarding. The law therefore mandates Bush, CIA and military commanders to respect the manual. The veto shows Bush´s disdain for country´s constitution, lawmakers and democratic will of the American people.
Bush has been rejecting recommendations supporting use of judiciary and existing legal and peaceful means including use of police to fight anti-state elements (or so called terrorism). Awami National Party (ANP) leadership that is going to form government in NWFP in its statements has rejected use of force. Instead, it has support use of existing law enforcement setups, intelligence and judicial system to eradicate anti-state elements. There are strong apprehensions that creation of special elite force will turn the province into a police state. The creation of elite forces to tackle terrorism in third world countries brings their own set of problems for local population. The Malaysian elite force excesses are case in point. The ordinary people blame west for abuses of such setup. NWFP should not allow creating of similar setup to avoid turning the province into a police state. There is a growing consensus in West and US media that existing courts and state law and order setups can deliver.
In all probability despite advice to the contrary-try terrorists in ordinary courts to uphold norms of justice- Washington is all set to try terrorists in military courts instead of civil courts. In case US military courts will hold trials of anti-state elements, it will set a precedent for third world countries. It will give dictators and repressive regimes from rest of the world a free hand to undermine their local constitution, use law for personal gains, political victimization and undermine freedom of judiciary and media, which in turn will fuel discontentment and hatred for advanced world. Africa, ME and Asia are cases in point.
Reportedly, Bush is all set to veto Surveillance Bill in a standoff with US lawmakers who want to scrap the bill to end an era of unauthorized bugging of ordinary people´s phone conversations, internet traffic including e-mails, blogs, chats etc. The US Constitution including Bill of Rights mandates court orders for such activities. Reportedly, almost all pro-Bush regimes across the world have resorted to similar illegal practices. In case the Bill is vetoed, it will be a great setback to universal individual rights, freedom of speech and right to self-protection. It is opined that due to immense pressure of mobile and internet service providers Bush may actually veto the Surveillance Bill to protect the service providers from impending lawsuits for their alleged involvement in illegal activities http://www.bloomberg.com/apps/news?pid=20601103&sid=aqKD1xL9Q3i8&refer=us.
Islamabad needs to review its foreign policy and support for war against terrorism because people of Pakistan have voted against Musharraf´s Afghan policy, role as non-NATO ally and cooperation in Bush´s war against terrorism. Pakistan must withdraw as non-NATO ally and refuse Para-military training offer to avoid recent Japan, Manila like situations where local were raped by foreign forces. Similarly avoid situation where locals not only stood up against foreign forces but in case of Somalia and ME the foreign force bases were attacked also.
In Pakistan´s case, the Bush-Musharraf flawed policies could jeopardize country´s working relations with US. Pakistan´s security setups are capable to handle all kinds of training needs. In case of urgent need the training could be given in US. Islamabad and Washington must respect policy of new NWFP govt., which reportedly has already spelled out its policy- of using dialogue, economic incentives and extension of political parties act- to restore peace and stability in the province. Otherwise also use of brute force in last six years in Afghanistan, surrounding areas, and rest of the hotspots has been counterproductive.
Policy change is also important because NATO Afghan mission has failed. NATO member have withdrawn their support including Australia because Bush changed Afghan reconstruction missions to full-scale military operation for vested interests. Pakistan instead should seal its Afghan border to avoid the spillover and deny Republicans to use Afghanistan chaos in upcoming US presidential election.
Undoubtedly, independent judiciary is of critical importance for Pakistan to end corruption, improve institutional stability and restore true democracy. But since its restoration is likely to restore respect of law that will undermine Bush´s unlawful war against terrorism therefore in all probability it will be an uphill struggle for Pakistan for now to see reinstatement of deposed judges as part of restoration of independence of judiciary. It also explains West´s double standards when it comes to supporting third world countries in their battles to strengthen democracy, democratic institutions including judiciaries, media and accountability.
Finally, it is hoped that Pakistan remain united in its struggle for the restoration of judiciary to help bring true democracy, end culture of subverting country´s constitution and imposing dictators for vested interests. Hopefully parliament, executive and judiciary will respect public mandate and Pakistan´s constitution. Independent judiciary is the custodian of a stable and strong Pakistan. Similarly, it is also hoped that West respects will of public, law and sovereignty of Pakistan to maintain positive and long-term working relationship with the country. A stronger democratic Pakistan best serves national domestic and international interests if only it is realized.