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America and the Rule of Law in Pakistan

JURIST Special Guest Columnist Saeed Malik, a US citizen who is the younger brother of former Pakistan Supreme Bar Association president and lawyers' movement leader Muneer Malik, says that the Obama Administration should support Pakistan's lawyers and civil society by pressing Pakistani President Asif Ali Zardari to reinstate the country's ousted chief justice and fully restore the rule of law...

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A year ago I wrote that Pervez Musharraf's dictatorial rule over Pakistan was destined to end up in the dustbin of history. In a transparent process to clear the constitutional hurdles to his third term as president, Musharraf in November 2007 fired the Chief Justice of the country and suspended the constitution. This was an act so brazen that sixty of the Chief Justice's brethren on the benches of various Pakistani federal and provincial courts resigned in protest. The subsequent movement by Pakistan's lawyers to restore the independence of the judiciary is well known to everyone.

The Bush Administration, in its characteristically short-sighted approach to foreign policy, turned a blind eye to Musharraf?s massacre of the judiciary, abandoning the protesting lawyers and civil society. Forget the moral indefensibility of a stand that sides with those who muffle the voices of those seeking the rule of law; a popular and just movement is like a volcano and cannot be stopped. Musharraf clung to power for a few miserable months while American popularity in Pakistan fell to single digits.

And here we are again! I have argued before that without a free and independent judiciary any experiment in democracy will quickly implode. The Bush Administration?s model of hybrid democracy in Pakistan is in shambles again. In early 2008 elections were held in Pakistan and a new government was installed, but the judicial crisis was left to fester. Without an independent and credible judiciary, even an elected leader turns corrupt and dictatorial. Case in point: Pakistan?s current president, Asif Ali Zardari.

Mr. Zardari, after giving two written guarantees to restore the Chief Justice of Pakistan and his court, has stalled and reneged. Mr. Zardari?s motives are transparent. He is afraid that an independent court will inconvenience him with personal and national accountability. As "First Man", when his wife Benazir Bhutto was Pakistan's prime minister, Mr. Zardari was known as Mr. Ten Percent, for the gratuity he demanded of anyone who desired a government contract. Mr. Zardari, with Musharraf?s help, was able to secure a blanket pardon for all criminal offenses registered against him, and Musharraf?s Attorney General withdrew Pakistan as a plaintiff from money-laundering case pending against Zardari in Swiss courts.

Mr. Zardari is on record saying that signed agreements must not be taken seriously because they merely reflect a ?political reality? and are not binding. This is not uncharacteristic of Mr. Zardari. For years, he had claimed that he was a university graduate (a requirement until late for holding elected office in Pakistan) from a certain school in England. When it was uncovered by the New York Times that the school Mr. Zardari claimed to have attended does not exist not did it ever, Mr. Zardari )after having accused the Times of lying) moved his rubber-stamp court to remove the graduation as a requirement for holding elected office.

So what does this have to do with us?

Firstly, the United States is the biggest donor of aid to Pakistan. It must qualify this aid with the requirement the government of Pakistan demonstrate its commitment to human rights and the aspirations of the people of Pakistan. The Obama Administration should not make the mistake of the Bush Administration. A decisive majority of Pakistanis ardently support the restoration of the Chief Justice. If the United States even passively undercuts the movement of Pakistan's civil society, as it has done in the past, it is promoting lawlessness and thus aiding the cause of the extremists.

Secondly, although it may be expedient to deal with autocrats who make mince-meat of this thing called the judiciary, it is neither prudent nor in America's longer-term interests. Agreements cannot be made with Zardari alone. First Mr. Zardari does not believe in agreements being binding anyway. Second, the people of Pakistan must be stakeholders too. We will not make them stakeholders until we side with them in their war for justice.

Pakistan's lawyers have now begun a long march, peacefully demonstrating in support of the rule of law. The government of Mr. Zardari has already started to throw people in prison. Will they not learn that when peaceful avenues are closed, the door of violence begins to loom as an option?

Saeed Malik is the younger brother of Muneer A. Malik, who was president of Pakistan's Supreme Court Bar Association in 2007 when the Lawyers Movement in Pakistan was first launched. A US citizen for more than 35 years, he is also founding partner & chairman of the board of for Silicon Turnkey Solutions (www.sts-usa.com), based in California's Silicon Valley.

Full post as published by JURIST - Forum on March 12, 2009 (boomark / email).