Will new Pakistan PM challenge US agenda?

That is a question I ask in my most recent piece on Pakistan, published today in NewMatilda.com:

On the afternoon of Tuesday 25 March, Yousaf Raza Gilani was sworn in as Pakistan's 26th Prime Minister.

The ceremony was noteworthy for a number of reasons. For one, Gilani took his oath from President Musharraf, the same man who had him jailed on corruption charges seven years earlier. Gilani spent the next five years in prison for his troubles. Now Gilani's coalition government is very publicly seeking to remove Musharraf from office.

Musharraf meltdown

My latest piece, on Musharraf's clamp down on dissent in Pakistan, has been published in this week's NewMatilda.com:

Perhaps inspired by his counterparts in Burma, President Pervez Musharraf of Pakistan has proceeded to clamp down on political dissent like never before. What began as a knee jerk reaction to increasing disenchantment with his regime has spiraled towards ever more draconian measures that have completely erased any remaining claim Musharraf may have to being called a moderate.

The full article is available here.

Dictatorship Pakistan

Musharraf's dismissal of the Pakistani Chief Justice reveals the true face of the War on Terror.

Friday, or ‘Jumma’ as it is known to Muslims, is the holiest day of the week. It is usually a day of rest and reflection. It was on a Friday, 9 March 2007, that President Pervez Musharraf of Pakistan told the country’s senior most judge, Chief Justice Iftikhar Mohammed Chaudhry of the Supreme Court, that he was being dismissed due to allegations of misconduct. Little detail of the alleged misconduct was made public by the Government. What information is known of the allegations came from an open letter to the Chief Justice from a noted pro-Government lawyer and television presenter, Naeem Bokhari.

Bokhari alleged that Chaudhry excessively intimidated advocates in court, that he used his influence to get his son a comfortable Government job and shielded him from a court investigation, and that the Chief Justice abused his government transport privileges (an allegation that Justice Michael Kirby of the Australian High Court may well appreciate). In a country rife with corruption, where ‘contacts’ and family networks are necessary to get everything from your driver’s licence to electricity, and where it is a well known ‘secret’ that President Musharraf himself has acquired many acres of public land for his private use, dismissing such a senior government official on such flimsy allegations seems rather harsh. In fact, it appears the allegations are a smoke screen for a politically motivated dismissal.

According to one of Pakistan’s most senior constitutional lawyers, former Law Minister Syed Iftikhar Hussain Gilani, Chief Justice Chaudhry told him:

[T]he president had given him [Chaudhry] two options — either to resign and the government would take care of him which meant that he would be accommodated at some lucrative post, and second to face the reference [alleging his misconduct]. And he told him that he would face reference.

Confusion has reigned over the dismissal. Originally, it was asserted that he had been removed from office. Then, perhaps after Government lawyers inspected the nation’s constitution, it was announced that Chaudhry was still the Chief Justice and had merely been placed on “forced leave” while an investigation into the allegations unfolded. There were also reports that he was under house arrest. Yet only a few days after his removal, Musharraf, through the Acting Chief Justice, confidently assured all that Chaudhry was not under house arrest and was free to do as he pleased – except return to the Supreme Court.

After private television stations broadcast images of the Chief Justice and members of his family being manhandled by police, a Supreme Court panel was hastily set up to investigate the incident. At least one of these stations was ransacked by police for showing images of police clashing with lawyers protesting the Chief Justice’s removal. Soon after, the Government took both private television stations off air. The public outcry from these actions eventually forced the Government to allow the television stations back onto the airwaves and compelled Musharraf to personally apologise live on air.

Given this environment, it is very unlikely that Chaudhry will be able to serve as Chief Justice with the same level of freedom and impartiality as before. His best hope of returning to the Court at all would be through concerted political pressure. In a dictatorship heavily reliant on foreign military, economic and political support, the most effective form of pressure would be from key international allies, particularly the United States but also Britain, and even Australia. I will elaborate on this further later.

The real reasons for his dismissal

It is widely understood in Pakistan that Chaudhry has been removed not because of any misconduct but because he threatened Musharraf’s absolute rule, as demonstrated in a number of Supreme Court decisions which condemned the corruption and oppression of Musharraf’s Pakistan. Last year the Chaudhry Supreme Court refused a government request to dispose of a matter seeking to trace the whereabouts of hundreds of missing persons believed to have been abducted by Pakistani intelligence services. Chaudhry and a majority of the Supreme Court have been highly critical of the Musharraf Government’s inability to prosecute individuals guilty of ‘honour’ crimes against women and children, particularly in rural Pakistan. Last year the Chaudhry Supreme Court over turned the sale of the National Steel Mills to a private consortium on the grounds that it was unconstitutional. Prior to the decision, the Government had virtually completed the sale of the National Steel Mills to a consortium headed by a close friend of Pakistan Prime Minister Shaukat Aziz at below the steel mill’s market price.

Another perceived reason for Chaudhry’s removal was Musharraf's fear that Chaudhry would not endorse his re-election as President while also holding the office of Chief of the Armed Forces later this year, presumably on the basis of its questionable constitutionality.

Although these decisions suggest that Chaudhry is something of a judicial activist, he is also a respected member of Pakistan’s elite society. In 2004, Chaudhry supported President Musharraf’s amendment of the national constitution to enable him to serve as both Chief of the Armed Forces and President at the same time. The following year Chaudhry was promoted to Chief Justice. Such is the ever increasing impunity of the Musharraf regime that simple judicial accountability has become a heresy, even when practiced by a respect member of elite society.

A dangerous vacuum in legitimate authority

Chaudhry’s dismissal has increased Pakistan’s already fragile political fabric in a way that is difficult to underestimate but easy to misinterpret. One obvious repercussion has been the further erosion of the Musharraf regime’s legitimacy as the government of Pakistan. Already a deputy Attorney-General and at least five judges have resigned in protest at the dismissal. Thousands of lawyers throughout Pakistan have staged boycotts of the country’s courts system. The main opposition parties have also condemned the dismissal, some even demanding that Musharraf resign. What is most interesting about this opposition is that it has united, at least for the time being, parties from both the religious and secular sides of the political spectrum.

Whereas the general perception in the West is that Musharraf is a bulwark against a growing Islamist movement in Pakistan’s Army and frontier regions, Chaudhry’s dismissal undermines one of Pakistan’s most powerful surviving secular institutions – a common law judiciary modeled on its English counterpart.

In an environment where governance is mired in corruption and human rights abuses are frequent, the Supreme Court has been one of the few institutions capable of challenging the twin threats of fundamentalist violence and increasing authoritarianism. Pakistan has a system of Sharia or ‘Islamic Law’ Courts whose decisions only the Supreme Court has the power to overturn. This has been demonstrated over the past few years in a string of matters where the Supreme Court overturned decisions of the Sharia Court which allowed a number of sex offenders to go unpunished, and which had limited the rights of women in property disputes. The Supreme Court’s scrutiny of the Musharraf regime has already been described above.

Silence from the West

There has been a deafening silence from the United States, Britain, and Australia – all key allies of Pakistan – over the Chief Justice’s dismissal. The US State Department’s first response to the dismissal was to assert that it was an internal matter for the Pakistan Government to sort out. A US Department of State spokesperson later explained:

We believe that President Musharraf has made a commitment to change Pakistan and we think that is a positive thing. We're not going to dictate to him or anybody else and the Pakistani people exactly what those changes are going to be or specific steps that they might need to take. Of course we can offer guidance and counsel and encouragement to continue along the pathway to democracy. But President Musharraf is good -- has been a solid friend in fighting the war on terror.

Neither the British nor the Australian Governments have issued any public statement on the dismissal.

This remarkable silence is not an insignificant matter. Pakistan is heavily reliant on economic and political support from the West, particularly from the US. Without this support there is a real prospect that Pakistan would become a failed state like its eastern neighbour Afghanistan.

Prior to September 2001, the Pakistan economy was severely depressed due to an international economic embargo in response to its decision to go nuclear and refusal to become a party to the Nuclear Non-Proliferation Treaty. That situation quickly changed as Musharraf realized a dramatic shift in the political winds. As the US State Department country profile for Pakistan explains:

The events of September 11, 2001, and Pakistan's agreement to support the United States led to.. military assistance… to provide spare parts and equipment to enhance Pakistan's capacity to police its western border and address its legitimate security concerns. In 2003, President Bush announced that the United States would provide Pakistan with $3 billion in economic and military aid over 5 years. This assistance package commenced during FY 2005.

Incredibly, that economic support is expected to increase over the next few years despite the present crisis.

It would be unsurprising if, in the event a regime unfriendly to Western interests came to power in Pakistan, there was a sudden well spring of concern and condemnation of Pakistan's poor human rights record, lack of democratic reform, and support for militant orthodox Muslims – all of which the present regime that is allied to the West is already guilty.

A telling contradiction

At the same time as current events were unfolding in Pakistan, Foreign Minister Alexander Downer found time to condemn the Mugabe regime in Zimbabwe:

The brutal suppression of a rally in Zimbabwe over the weekend by the Mugabe Government, including killing an opposition activist, is further evidence of the regime’s utter disregard for basic democratic principles and the human rights of the people of Zimbabwe.

Both the US Secretary of State Condoleezza Rice and British Foreign Secretary Margaret Beckett made statements to the same effect.

The sad irony is that countries like the United States, Britain and Australia can play a bigger role in fomenting democracy in Pakistan than Zimbabwe because they have stronger and much more cordial military, economic and political ties with Pakistan. A bureaucrat from any one of these countries might claim that they are doing 'all they can' behind the scenes to protest the removal of the Pakistani Chief Justice. But there is no better way to win the ‘hearts and minds’ of ordinary Pakistanis and the global Muslim community than to issue a strong public condemnation of the dismissal.

Part of the thinking in the West, especially the US, Britain and Australia, may be that Musharraf provides stability in a volatile region of the world. The problem with this thinking is that it is incredibly shortsighted and naïve because it does not take into consideration the very dynamic nature of geopolitics in Pakistan and its surrounding region. Moreover, it places too much emphasis on Musharraf as an individual as an agent of stability. By investing so much in one individual, Pakistan’s western allies actually consolidate his grip on power instead of developing institutional stability in the country. Further, rather than being a vanguard against religious fanaticism and militancy, Musharraf is in fact creating a vacuum in legitimate authority that is improving the prospects of a militant Islamist takeover.

In other words, by supporting Musharraf and ignoring his contempt for democratic reform, of which the dismissal of Chief Justice Chaudhry is but the most recent example, Pakistan’s Western allies are actually undermining their own stated aim of combating religious fanaticism and promoting democratic reform around the world.

An edited version of this piece is available at New Matilda.

David Hicks: New Charges — Same Old Problems

On 3 February 2007, the United States brought new draft charges against David Hicks for his alleged involvement in terrorist activities. The charges are still draft because they have still to be ‘approved’ by the authority overseeing the Military Commission established to prosecute him.

The problem with these new charges is that, whether or not they are approved, they do little to suggest that he will receive a fair trial. This is because the new charges and the new Military Commission created to prosecute Hicks and other Guant á namo Bay detainees suffer from the same legal deficiencies that the US Supreme Court identified in the original Military Commission process.

The US Government was compelled to bring new charges against Hicks under a new Military Commission in the wake of the US Supreme Court’s decision in the case of Hamdan v Rumsfeld. In that case, the Supreme Court held that the regime for detention and prosecution of Guantánamo Bay detainees was unlawful. Among other things, the Court held that Guantánamo Bay detainees are protected persons under the Geneva Conventions of 1949, and that the US Government had failed to afford Salim Ahmed Hamdan, a Guantánamo Bay inmate, a fair trial as it is obliged to under Article 3(1)(d) of the Geneva Conventions.

The Hamdan decision was no work of radical jurisprudence. Indeed, the Supreme Court did not even address all of the deficiencies of the first Military Commission with respect to the Geneva Conventions. The decision, nevertheless, caught the Bush Administration off guard. Despite the presence of six Republican appointees to the Supreme Court bench, three of whom did not support the majority decision, it was difficult to avoid the abject unlawfulness of the detention regime at Guantánamo Bay, even if one were limited to an analysis of the applicable Geneva Conventions.

Bizarrely, the Bush Administration’s response was to reconstitute the Military Commission under the authority of legislation passed by Congress rather than Presidential Order as had originally been the case. Apart from this, the Military Commission process remained effectively the same as it had been before the Hamdan decision.

The Geneva Conventions provide broad but sensible protections to persons — either enemy combatants captured during hostilities or civilians — to ensure that they are treated in a fair and humane manner. Significantly, the Conventions do not prohibit the sentencing of captured enemy combatants or even the administration of penalties for crimes committed during a period of conflict. It is important to note this because, hitherto, David Hicks has not been lawfully charged with any offences, let alone found guilty of any offence.

It is not at issue whether the US has legal capacity under domestic and international law to capture and prosecute enemy combatants. What is at issue is that Hicks has been detained since December 2001 without being lawfully charged or sentenced, and that he has made numerous serious allegations of torture throughout his detention. There is nothing in the new charges which mitigates this situation.

The new charges are a slightly more detailed reproduction of the original charges brought against Hicks in 2004. In short, it is now alleged in more detail that Hicks willfully participated in al-Qaeda and Taliban actions against the US in Afghanistan and abroad. It is now alleged that:

• surveillance training Hicks received from Lashkar-e-Toiba , a group based in Pakistan considered a terrorist organisation by the United States and Australia, contributed to the October 2000 terrorist attack on the USS Cole in Yemen;
• Hicks willfully engaged and sought to engage US and Northern Alliance troops with the Taliban and al-Qaeda, even after it was clear that it was a losing battle;
• Hicks trained other militants on how to fight the US and Northern Alliance in Afghanistan; and
• Hicks saw footage of the 11 September 2001 terrorist attacks on the United States and said that this was a good thing.

It is also alleged that Hicks participated in terrorist activities with a range of known ‘associates of al-Qaeda’ including John Walker Lindh, the ‘American Taliban’ who was brought before a US civilian court and is currently serving a 20-year jail sentence, and Richard Reid, who was arrested in the US after attempting to set off a shoe bomb on a passenger airplane.

Slightly more detailed allegations are provided on Hicks’s whereabouts during the US and Northern Alliance campaign against the Taliban. The new charges omit the earlier allegation that Hicks translated al-Qaeda operations manuals from Arabic to English. This is significant because it suggests that there was little or no evidence to substantiate that original claim.

A general concern with the charge sheet is that it is vague, and yet seeks to link Hicks to events, such as the attack on the USS Cole, and personalities, such as Lindh and Reid, that have entered the popular canon of terrorism. The irony is that even if the charges are vague and disjointed from a legal standpoint, they are likely to resonate with the public sentiment that Hicks was part of a global terrorist network — regardless of the outcome of the proceedings.

I believe both the US and Australian Governments are relying on such a public sentiment to drown out criticism of the proceedings on the grounds of fairness and justice.

Another concern is the extent to which the evidence which will be tendered against Hicks was obtained under torture or plea bargaining. For example, were other inmates offered a reduced sentence in return for ‘evidence’ linking Hicks to al-Qaeda activities in Afghanistan? Such scenarios are purely speculative but far from implausible.

The Australian Government has welcomed the new charges on account of its stated policy that Hicks must be brought to trial for his alleged involvement with terrorist organisations. Although the Government has slowly started to increase the urgency of its calls for Hicks’s return to Australia, it has refrained from making any legal criticisms of the Military Commission process, such as those outlined by the US Supreme Court in the Hamdan case.

In fact, from the very outset, the Australian Government has been supportive of the US’s treatment of Hick. Prime Minister Howard has even acknowledged that he could secure Hicks’s transfer to Australia if he so wished. Howard claims that he has not done so because he wants Hicks to face trial, something which is impossible in Australia because Hicks has not committed any offences under Australian law.

There is a real possibility that Hicks is an innocent man whose only crime was being at the wrong place at the wrong time. If David Hicks is returned to Australia without a conviction of some sort, the US would effectively be admitting that it had no good reason for detaining him in the first place. But even if Hicks is not found guilty of any crimes, it is likely that some sort of restraining order will be placed on him in Australia.

Either way, it is unlikely that Hicks will lead a normal life.

This piece originally appeared in New Matilda.