Musharraf PR Team's Mis-statements at Asia Society in New York on Friday Nov 30, 2007

(listen to the recording at: http://www.asiasociety.org/resources/pakemergency.html)

Background: An Emergency was declared in Pakistan on November 3, 2007 by General Musharraf as Chief of the Army Staff and on the same day a "Provisional Constitutional Order" (PCO) was issued by him as President of Pakistan.  Pakistan's 1973 Constitution only allows the President of Pakistan to declare Emergency.  It does not give any authority to the Chief of the Army Staff to declare Emergency.  This illegality was acknowledged by General Musharraf in an interview with BBC News on Nov 16th ( http://news.bbc.co.uk/player/nol/newsid_7090000/newsid_7099400/7099434.stm?bw=nb&mp=wm&news=1&ms3=6&ms_javascript=true&nol_storyid=7099434&bbcws=2). He specifically says, "Have I done anything unconstitutional and illegal? Yes, I did it on 3^rd November." Under the PCO, President Musharraf suspended Pakistan's 1973 Constitution depriving the people of Pakistan of their fundamental rights and preventing the actions of his government to be challenged in the Courts. The justices of the Supreme Court of Pakistan were ordered to take a fresh oath to abide by the PCO. The Chief Justice Iftikhar Muhammad Chaudhry and seven other justices issued their own legal order calling General Musharraf's declaration of Emergency unlawful and urged the military officials not to act on unlawful orders.  General Musharraf then dismissed CJ Chaudhry and in his place swore in a pro-Musharraf member of the Supreme Court as the new Chief Justice. Earlier in March 2007, CJ Chaudhry was suspended by General Musharraf but was later reinstated as Chief Justice by a special bench of the Supreme Court. It should be noted that there is no provision in the Constitution of Pakistan for "suspension" of the Chief Justice. Civil society, students, lawyers and human rights activists are all rising up in protest to the actions of President Musharraf across Pakistan.   What we are witnessing, is the people of Pakistan's quest for the Rule of Law.

In late November 2007, President Musharraf sent a Special Delegation to makes its official case in various cities in the United States including New York and Washington DC.  The delegation comprised of Mr. Nasim Ashraf (Minister of State and Chairman of National Commission for Human Development), Barrister Mohammad Ali Saif (Minister of Tourism and Youth Affairs) & Ms. Kashmala Tariq (Former Member of the National Assembly of Pakistan).  What follows are rebuttals to some of their mis-statements at an event at Asia Society in New York on Friday November 30, 2007. The event was co-sponsored by the Council on Foreign Relations and was moderated by Ambassador Nicholas Platt, President Emeritus of Asia Society and US Ambassador to Pakistan from 1991 to 1992. The audio of the event was made available by Asia Society on their website: http://www.asiasociety.org/resources/pakemergency.html .

While listening to the tape, it becomes quite apparent rather quickly that the main target of this delegation was the Supreme Court of Pakistan and its deposed Chief Justice Iftikhar Muhammad Chaudhry.  Several mis-statements were made specifically with regards to the person of CJ Chaudhry in order to discredit him.  The main objective of the delegation was to make a case that the pre-emergency Supreme Court of Pakistan, led by CJ Chaudhry, does not deserve to be reinstated under any circumstances.   

Mis-statement # 1: The Supreme Court of Pakistan was releasing "terrorists"

Barrister Saif and Mr. Ashraf argued that the Supreme Court was releasing terrorists. At one point, Barrister Saif stated that "Chaudhry after being reinstated [after the first suspension in March 2007] took missing person's case in which persons were 'allegedly' involved in terrorist activities." (34:05)

Rebuttal: The Supreme Court never ordered the release of any person charged with any crime. Instead, it addressed a petition filed by the Human Rights Commission of Pakistan (HRCP) with the names of 485 individuals who had simply disappeared. These people had been picked up by Pakistan's intelligence agencies and had never been heard of again. Many of these people have been held without being charged for years. Many apparently have no connection to terrorism, but have no way of proving their innocence since the government does not even acknowledge holding them.  At the request of the HRCP, the Supreme Court demanded that the basic right of Habeas Corpus be observed, and that these missing people be produced in court, and properly charged with crimes or offenses. In those instances where the intelligence agencies and the government were unable to provide any charge or supply even the most basic evidence against such individuals, the Courts ordered their release. There is nothing wrong with the Supreme Court demanding that, as per Pakistan's Constitution, any person in government custody be charged with a crime, and tried for it. Barrister Saif himself acknowledges on the tape that these people were "alleged" terrorists.

Mis-statement # 2: The Supreme Court ordered the re-opening of the Red Mosque

Barrister Saif stated that a two-member bench of the Supreme Court ordered the Lal Masjid (Red Mosque) to be opened.

Rebuttal: The two-member bench of the Supreme Court that ordered the reopening of the Lal Masjid (Red Mosque) was comprised of two judges who later took the oath under the Provisional Constitutional Order (PCO) after the emergency was declared by General Musharraf on Nov 3^rd.  It is clear that those two judges, Justice Muhammad Nawaz Abbasi and Justice Javed Buttar, are loyal to President Musharraf and it is not difficult to conjecture that these two "government judges" were instructed to issue such orders as a way of constructing a charge sheet against the Supreme Court and CJ Chaudhry. 

Mis-statement # 3: The necessary military action in NWFP province was not possible without declaring Emergency on Nov 3rd

Mr. Ashraf argued that the Musharraf government needed the NWFP provincial government's written approval to send military troops into Swat and because such an approval was not provided the Emergency declared on Nov 3^rd was necessary for the military to carry on its operations in Swat.

Rebuttal: The NWFP provincial government had resigned and the provincial assembly was dissolved prior to Nov 3^rd.  As a result, the central government already had full authority to send the military into Swat before Nov 3^rd and it did not need to declare Emergency on Nov 3^rd to do so. Even the Director General of Military Operations (DGMO) told several representatives of the media at a briefing at Military General Head Quarters (GHQ) in Rawalpindi soon after Nov 3^rd that the Emergency was not needed for the Swat operation. The GHQ briefing was attended by leading journalists and TV anchors including Ayesha Haroon, Nasim Zehra, Talat Hussain, Zaffar Abbas, Najam Sethi, Ejaz Haider, Kamran Khan and Shafqat Mahmood.  It should be noted that President Musharraf and the newly appointed Army Chief General Kiyani both held the DGMO post earlier in their military careers. It should therefore be quite clear that when it comes to military matters, the DMGO has lot more pertinent knowledge compared to a civilian like Mr. Ashraf. 

Mis-statement # 4: There was a long list of charges against Chief Justice Chaudhry

Barrister Saif and Mr. Ashraf stated the there was a long list of charges against CJ Chaudhry when he was initially deposed in March 2007.

Rebuttal:

These charges had their day in court, and were dismissed unanimously by an 11 member bench of the Supreme Court. Yet Barrister Saif continues to malign the Chief Justice by bringing them up. Specifically, these charges were the subject of a several months long proceeding before a full bench of the Supreme Court. During the proceedings the bench not only unanimously rejected the charges, but also dismissed them as being filed with mala fide (i.e. malicious) intent, and as being false on face value. Indeed, the government actually tendered a formal apology to the Supreme Court for several of the accusations which were false on their face, and were remarkably fined Rs. 100,000 for making baseless allegations.  The credibility of these charges and thus the integrity of the Chief Justice can be judged by the fact that, last month, Harvard Law School awarded Chief Justice Chaudhry its highest award, the Medal of Freedom. The most immediate past recipients of this award were Nelson Mandela, and the legal team which argued Brown vs. The Board of Education. In addition, the New York City Bar Association, in another vote of confidence in the integrity of the Chief Justice, has awarded him an honorary lifetime membership. This rare honor was last given to the late Chief Justice Rehnquist of the US Supreme Court.

Mis-statement # 5: Chief Justice Chaudhry was making political speeches

Barrister Saif stated that after CJ Chaudhry was first deposed in March 2007, he went around the country making political speeches at Bar Association events. (52:00)

Rebuttal: The Bar Association event organizers only allowed lawyers who were members to attend the events with CJ Chaudhry.  Members of political parties were not invited at these events. CJ Chaudhry made all his speeches regarding human rights and did not touch on political matters.  There is no evidence whatsoever that CJ Chaudhry made any political speeches. 

Mis-statement # 6: Chief Justice Chaudhry was planning on running for President

Barrister Saif alleged that Mr. Aitzaz Ahsan, who was CJ Chaudhry's lawyer after he was first sacked in March 2007, had stated that CJ Chaudhry was planning on starting a "Justice Party" and CJ Chaudhry would be its presidential candidate. (52:30)

Rebuttal: Mr. Aitzaz Ahsan or CJ Chaudhry never made any comments regarding any new party or about CJ Chaudhry running for President.  Like all other public servants, CJ Chaudhry cannot run for public office till two years after his retirement from the Supreme Court, as stated in the 1973 Constitution of Pakistan. President Musharraf broke that law by running for President while still in a military uniform.  The legal challenges against his actions were pending in the Supreme Court when he declared the Emergency on Nov 3^rd.

Mis-statement # 7: None of the Supreme Court Judges are under house arrest

Barrister Saif stated that CJ Chaudhry and other judges are not under house arrest and there is no written order for their arrest. (38:09)

Rebuttal: CJ Chaudhry can't get out of his house which is under heavy police guard and his closest relatives are not allowed to see him.  CJ Chaudhry's daughter was due to take her O-Levels exams and the British High Commission arranged for her to take her exams at CJ Chaudhry's house as she was not allowed to leave the house by the police.  Even the moderator of the Asia Society event, Ambassador Nicholas Platt, told Barrister Saif that the judges were indeed under house arrest.  In addition, US Ambassador to Pakistan, Anne Patterson was not allowed by the police to meet with Mr. Aitzaz Ahsan who is also under house arrest after two weeks in solitary confinement in a prison. (http://www.thenews.com.pk/top_story_detail.asp?Id=11535)  

Mis-statement # 8: A leading Pakistani journalist said that the Supreme Court was to blame for the declaration of emergency

Mr. Ashraf quoted Mr. Najam Sethi of The Friday Times from an article where Mr. Sethi blamed CJ Chaudhry and the Supreme Court for pushing President Musharraf to a point where he had to declare the Emergency on Nov 3^rd.

Rebuttal:  Najam Sethi is indeed considered one of the prominent journalists of Pakistan but he is clearly in the very tiny minority among Pakistan's influential journalists.  The following journalists who are as widely read as Najam Sethi have strongly criticized President Musharraf for his Nov 3^rd actions and lay the blame fully at his feet: Ayaz Amir, Tanvir Ahmad Khan, Hasan Askari Rizvi, Nasim Zehra, Shafqat Mahmood, Tariq Fatemi & Zahid Hussain. The overwhelming majority of respected journalists are against President Musharraf's declaration of the Emergency, including those who were previously somewhat sympathetic to him.

Mis-statement #9: Mr. Saif is a "neutral" member of the caretaker government

Barrister Saif stated in response to a question over the internet that he is a "neutral" member of the caretaker government installed by President Musharraf because he does not belong to a political party.

Rebuttal: Barrister Saif is not neutral.  He was an Advisor to the Ministry of Women's Affairs during the previous PML-Q government supported by President Musharraf. At the Asia Society event, he made the case in defense of the previous PML-Q government and blasted several major political parties in Pakistan as well as the lawyers, Supreme Court and the media.  In every country of the world, except under the emergency in Pakistan, such a person is considered "biased". Barrister Saif should be immediately removed from the "neutral" caretaker government and so should others belonging to the PML-Q party who are considered loyal to President Musharraf.

Mis-statement #10: International observers are welcome to come monitor elections

Ms. Tariq stated that "we welcome western observers to monitor the elections." (50:58)

Rebuttal: US government has officially raised serious concerns that foreign election observers willing to rush to Pakistan are being denied visas by the Pakistan embassies, a matter which has been raised at the level of President Musharraf and caretaker Prime Minister Muhammed Mian Soomro. US Ambassador Anne W. Patterson held an urgent meeting with the caretaker PM to raise the issue while a delegation of US Congressmen, who called on General Pervez Musharraf on Friday, also informed him that visas were being denied to election observers. (http://www.thenews.com.pk/top_story_detail.asp?Id=11475 )

Mis-statement # 11: President Musharraf would not have to face the death penalty

Mr. Ashraf stated in response to a question that while he agreed that under the 1973 Constitution of Pakistan, a military coup or martial law is punishable by death as its considered mutiny, President Musharraf was off the hook because the (hand-picked pro-Musharraf) judiciary post the coup in 1999 had upheld the coup and a 2/3rd majority of Parliament (constituted after elections in 2002 which were considered by most to be massively rigged) had also condoned his actions.

Rebuttal: President Musharraf could still face the death penalty if the 1973 Constitution is reinstated. On Oct 12, 1999 the then-elected Prime Minister Nawaz Sharif sacked General Musharraf under powers vested in him by the Constitution of 1973 and replaced him with another general.  Mr. Musharraf who was no longer the Chief of the Army as a result of the PM's actions, later that day took the unlawful step of a military coup with the help of other military generals and breached Article 6 of the 1973 Constitution. The 1973 Constitution of Pakistan can indeed be amended by a 2/3^rd majority of the Parliament but Article 6 has not been amended or deleted even by the pro-Musharraf government and it still states that a military coup is punishable by death without any statute of limitations. Therefore, President Musharraf could still face the death penalty for his actions on Oct 12, 1999.  In addition, his actions on Nov 3, 2007 when he declared an emergency and revoked the 1973 Constitution (for the second time) are also punishable by death under the 1973 Constitution.  Interestingly enough, President Musharraf admitted in a BBC interview on Nov 16th that he had in fact acted illegally and violated the 1973 Constitution on Nov 3rd.  Since the Constitution cannot be amended until after it is reinstated and only an elected Parliament with 2/3rds majority have the right to amend it, the question at Asia Society by a member of the audience highlighted the lack of legal protection that President Musharaf would have under a reinstated 1973 Constitution.  This could be one reason why President Musharraf does not want the pre-emergency Supreme Court and CJ Chaudhry to be restored.

Blogged with Flock

First things first

There can be no free and fair election unless all the superior court judges are restored. You cannot put the cart before the horse.

 

By Muneer A. Malik

 

IT was heartening to see Benazir Bhutto and Nawaz Sharif finally sitting together. The formation of a joint ARD-APDM committee is a positive step. The committee is to agree on a minimum charter of demands that must be fulfilled before the opposition parties participate in the elections.

Naturally, the primary agenda of the opposition parties is to ensure an atmosphere where free and fair elections are possible. But such elections are impossible without the restoration of the superior judiciary to the status quo prevailing on Nov 2. There can be no transition to democracy without an independent judiciary.

 

Consider this. The Election Commission of Pakistan (EC) is responsible for the overall organisation and conduct of elections. It comprises a retired Supreme Court and one serving High Court judge from each province. The actual nomination and polling process is supervised by District Returning Officers (DROs), Returning Officers (ROs) and Assistant Returning Officers (AROs). Serving district judges, additional district judges and civil judges perform the duties of the DROs, ROs and AROs respectively. The Chief Justices of the pro vincial High Courts have administrative control over the subordinate judiciary. They control their appointments, transfers and promotions.

 

Any challenges to an RO's acceptance or rejection of nomination papers are to be decided by election tribunals constituted for that purpose. These tribunals consist of High Court judges. Any post-election disputes relating to the qualifications of candidates or allegations of unfairness or rigging are decided by election tribunals constituted for this purpose by the EC. Challenges against decisions of these tribunals end up before the provincial High Courts and finally the Supreme Court.

 

Every stage of the election process is conducted and supervised by the judiciary. Given our electoral system, it is naïve to say that the issue of restoration of judges can be taken up after the elections. There can be no free and fair election unless and until all the superior court judges are restored. You cannot put the cart before the horse. Independent judges supervising the electoral process are the only guarantee of a free and fair election.

 

On Nov 3, the Chief Justice of Pakistan, the Chief Justices of two provincial High Courts and the majority of Supreme Court and High Court judges were sacked. The Chief Justice and his brethren Supreme Court judges are under house arrest! It is impossible to over-emphasise the enormity of this action. It has no parallels in Pakistani or any other country's history.

 

What was their crime? They were hearing a petition against Musharraf's re-election as president. They had not even decided the case! When judges of the Supreme Court can be summarily dismissed and placed under detention for daring to simply hear a petition against Musharraf; how can any judge in the future ever act independently? How can a man who worries for the safety and future of himself and his family ever go against the wishes of the establishment?

 

My concern for the management and editorial staff of this newspaper prevents me from expressing my views on the few judges who decided to take oath under Musharraf's Provisional Constitution Order (PCO) superseding their original oath to preserve, protect and defend the Constitution. They enjoy their offices while their erstwhile brother judges are forcibly confined to their houses.However, I am told that I can express my 'respectful, temperate criticism' of their judgments. I see no point in doing so. The legal fraternity does not and will not recognise PCO judges and their judgments. There is no point in petitioning courts whose independence is not guaranteed. The handful of lawyers who ignored the Pakistan Bar Council's boycott call, have already witnessed the utterly predictable results of their impetuosity. Likewise, political parties who rush to elections without first securing the restoration of an independent judiciary to supervise the electoral process will regret their haste.

 

Hundreds of district judges, additional district judges and civil judges throughout Pakistan were transferred with immediate effect by the incumbent de facto Chief Justices of the provincial High Courts just prior to the announcement of the election schedule. Again I am restrained from commenting upon the reasons behind this unprecedented step. But whatever the reasons may be, it is these lower court judges who will perform the functions of returning officers during the entire electoral process. And the EC has refused to reverse such transfers.

 

I am an optimist but I'm not a fool. The elections will be rigged. The ruling parties shall be returned with a thumping majority in parliament. Should PPP, PML-N, ANP and other opposition parties decide to participate; they shall be left marginalised. The most optimistic outcome could be a hung parliament where legislators will be left with a personal choice between packing their bags and going home or ratifying legislation that will preserve and grant indemnity to the usurper and his actions. And given the absence of an independent judiciary, there will be no legal recourse open to them.

 

The picture should be clear with the rejection of the nomination papers of the Sharif brothers. Understandably, they consider it futile to challenge the rejection before the current election tribunals and superior courts.

 

If the opposition parties are serious about securing free and fair elections with a level playing field; they must place the demand for the full restoration of the judiciary to the pre Nov 3 position on the top of their list. This demand has to be non-negotiable. In the absence of a full restoration of the judiciary; any concession granted by Musharraf's regime shall be meaningless.

 

The continuing protests, in the legal community and beyond, are taking their toll on the regime. The judicial machinery has come to almost a complete standstill. The growing consensus between the opposition parties is an endless source of concern for the establishment. The desperation of Musharraf's regime is evidenced by the number of leaks and feelers being sent out in every direction. Despite the Supreme Court's declaration that the issue of sacked judges is a past and closed transaction; it is being conveyed unofficially that the regime is amenable for a partial restoration of judges.

 

The legal fraternity shall not brook compromises on this issue. We shall not become party to the regime's attempt to pick and choose between judges and pack the courts with the more pliable ones. Each and every judge must be restored unconditionally. Our stand is based on principles and is not about individuals.

 

Now the judges who refused to take -- or were not given -- oath under the PCO are men who believe in the rule of law. They took a principled stand for the independence of the judicial institution at great personal cost. If they are restored, some may decide that the larger interest of an independent judicial institution requires them to make further personal sacrifice. But that choice must be theirs and theirs alone.

 

I have closely known the Chief Justice of Pakistan, Iftikhar Mohammad Chaudhry, Chief Justice of the Sindh High Court, Sabihuddin Ahmed and the Chief Justice of the Peshawar High Court, Tariq Pervez. I can testify to their honour and lack of vindictiveness.

 

But it is for the establishment to decide whether it prefers a course of confrontation that will plunge the nation into turmoil or whether it wishes to restore Pakistan's stability by submitting to the rule of law.

 

The writer is a former president of the Supreme Court Bar Association, who is currently hospitalised following renal failure during his detention in Attock jail.

Blogged with Flock

'Not Without My Khakis'

He said it. He probably could not control his emotions on the day when he bid farewell to the army in a ceremony reeking of pomp and excess, but Musharraf summed up, in one sentence, the supreme military psyche: “Without this army, the entity of Pakistan cannot exist” [emphasis added].

Right. And we lost East Pakistan partly because this glorious army surrendered when it most mattered that they put up a fight! Thanks to this very army the “entity of Pakistan” is struggling to stay alive today. Its interference, time and again, in the political process-not to mention its other ambitious money-making schemes- has done irreparable damage to the country’s institutions (in addition to that caused by some politicians).

Pakistanis too, are fast developing an intense dislike for the country’s army. Only the other day someone remarked “Show me an army officer, and I’ll show you a real estate agent.” What a shameful image the institution has created for itself.

What sham democracy are we heading towards, where the general-turned-president firmly believes that the army is the ‘be all and end all’ for the country, that our “existence” (no mild choice of words, mind you) depends on an institution that has, time and again, proved itself hungry only for power and wealth.

One is astounded at the audacity of the former general as he callously reduced Pakistan to a mere “entity” whose past and future rests on the shoulders of this bungling mob of soldiers called an army. And, to give credit where it is due, for so many months now and with many a heavy heart, the lower ranks of the military have been fighting fellow Pakistanis. While we empathize with them, we cannot ignore the fact that they are part of an institution that has rarely served the country faithfully. This cannot have been what armies were created for.

It is but natural then that, in these unfortunate times, Pakistanis all over the world should gasp for a breath of fresh air, and struggle to revive that document which almost every other country in the world believes is the real key to a nation’s existence – the constitution. Surely, in the 21^st century the life of any nation does not depend upon its army? And yet, in Pakistan our civilian president proclaims that his heart will remain inundated with love for the army. We only hope he can get his head out of the murky waters of military-style politics before his policies spell total ruin for Pakistan. Nevertheless, be warned all those who err to believe that Mr. Musharraf will be a force for positive change in Pakistan: you can take the man out of the army, but you will never take the army out of the man.

The struggle must continue. Musharraf may have shed his “skin” but there may be others conspiring to seize the much-coveted throne, illegally and extra-constitutionally. We can no longer allow the army, or any single person, be it a general or a politician, to attach to himself the label of indispensability. They must know that they are accountable to the people of Pakistan and, no number of self-constructed halos over their heads will detract from the oppression and misery they have wrought on Pakistan for sixty years!

We do not accept the sherwani in place of his khakis. Musharraf, the time has come for you and your beloved army to surrender your rein on power and make a full retreat!

Maria
Islamabad, Pakistan
December 2007

Blogged with Flock

Observe Dec 10 as 'black day' : HRCP urges civil society

Lahore 05 December 2007: The Human Rights Commission of Pakistan calls upon all members of civil society to observe the Universal Human Rights Day as a "black day". The worst human rights abuses, in the history of the country, were recorded in 2007. The rights of ordinary people have been violated by the government with impunity. More than 400 people have been picked up by security forces and many remain missing. The Musharraf regime obstructed the Supreme Court in providing justice to those who remain disappeared, as well as those who recorded their statements of having suffered extreme forms of torture at the hands of the security forces. Reports of torture, threats, intimidation, and arbitrary arrests run into thousands. Incidents of extrajudicial killings continue to be reported but never investigated.

The situation has now reached alarming proportions. The coercive apparatus of the State are being blatantly used against all sections of civil society. The media is chained and free expression censured. Thousands of lawyers, journalists, students, teachers and human rights activists were arrested. A number of them remain incarcerated under deplorable conditions. Lawyers and others have been accused of offences falling under the Anti-Terrorism Act. Thirty-five judges of superior courts have been put under house arrest. The family of the Chief Justice of Pakistan is also confined to their residence. This is unprecedented.

The rights of the people are being usurped on the pretext of curbing terrorism. It is the people who are suffering terrorism; both at the hands of non-state militants and state agents. The government has failed to bring militants to justice or to disarm them. On the contrary, at several occasions, the government and its agents have patronized or in the least, ignored criminal acts carried out by militants acting in the name of Islam.

HRCP warns that the claim made by Musharraf of moving towards a transition to democracy is a total farce. The assertion is yet another smack on the face of the people of Pakistan. Amendments to the Legal Practitioners and Bar Council Act as well as the Army Act are only a few examples of the government's grand plan to subjugate the spirit of peaceful members of civil society. Much more is to follow.

HRCP, along with other civil society groups, will organize a black day on the 10^th of December. Black flags and bands should be displayed on this unworthy occasion. In order to record the laudable struggle of the legal fraternity of Pakistan HRCP will award the best documentary film made on this movement. All entries are to be submitted by 30 June 2008. 

Asma Jahangir

Chairperson Human Rights Commission of Pakistan

Blogged with Flock