Pakistan needs the International Criminal Court

International Criminal Court

The failure of judiciary to successfully try and convict terrorists resulted in the creation of military courts. This has gained widespread approval, but it faces serious questions both about the constitutionality and also the wisdom of handing more responsibility to the military at a time when it is busy carrying out operations to root out terrorist groups. However there is another issue which has not been widely discussed which is that military courts will eventually be faced with cases that could call into question the military’s credibility.

Civilian courts may have proven that they are not up to the task of convicting terrorists due to threats and intimidations. Military courts may be free of this burden, but they carry other burdens besides. Take the missing persons cases. Civilian courts have been almost completely blocked from moving forward with these cases due to the resistance of military and intelligence agencies. If these cases are taken up by military courts, can anyone expect the outcome to be unbiased? The problem is, even if the military court is completely objective, its decisions will always be under suspicion because the military has a vested interest in the outcome. Same can be true of cases against alleged terrorists like Zakiur Rehman Lakhvi who are members of groups that are widely believed to have or have had support from national agencies. Whether or not it is true is actually besides the point. What matters is that even if someone like Lakhvi is innocent, by acquitting him a military court will look like it is biased, and its credibility will be unnecessarily tarnished.

Supposedly the US has called for turning over suspects like Lakhvi to India, but this is obviously ridiculous. No Pakistani suspect could ever receive a fair trial in India. However, there is another option which is to refer the cases to the International Criminal Court. This is what Ukraine has done, turning over evidences against alleged terrorists to the ICC and allowing the independent judiciary to give a fair and unbiased judgment. By following suit, Pakistan would not only be able to successfully prosecute terrorists, but convictions – and acquittals – would be above reproach because there could be no claim of favoritism or bias by the international tribunal. Civilian courts would be able to return their attention to decided cases required by the common man, and Army would be able to devote its energy and resources to fighting terrorists.

Despite supporting the aims of the International Criminal Court, Pakistan is one of few remaining countries that has not signed the Rome Statute of the International Criminal Court and refuses to cooperate with the Court. It’s time to change that.

 

Chief Justice Awards Himself

Chief Justice Iftikhar Chaudhry Gives Himself Award

The Chief Justice will be traveling to London next month to receive the prestigious International Jurist Award 2012, media reported over the weekend. While this recognition is being lauded in the media, it seems that there might be more to the story than has been reported.

No doubt the International Jurist Award 2012 is something of a relief for the Chief Justice after being the subject of a rather unflattering report by another international organisation, the International Commission of Jurists (ICJ). The ICJ report questioned whether the Chief Justice had crossed the line of his constitutional role as jurist and was attempting to influence the direction of policy – the latter being the proper role of parliament, not the court.

Actually, the ICJ’s findings were similar to those of another report released late last year, this one by the independent Human Rights Commission of Pakistan (HRCP). Dr Mohammad Taqi describes the HCRP’s findings as follows:

The HRCP seems to be of the opinion that the superior judiciary’s overzealous use of the suo motu powers as well as entertaining petitions by the so-called interested parties— the definition of remains nebulous and ever-expanding— has taken up time and energy of the courts to the detriment of other cases. In addition to— and often at the expense of— its normal function as the court of appeal, “the country’s apex judicial forum was also functioning as an ombudsman’s office, as an administrative court, as an anti-corruption tribunal, as a supreme investigation agency, and as the sole defender of not only the constitution but also of public morality”. In a country where the backlog of cases is to the tune of millions, by seizing itself with issues cherry-picked from or by the media or thrown in its lap for political reasons, the Supreme Court has clearly spread itself too thin.

After receiving such reviews by independent international legal organisations, finally having his work praised by an international legal organisation must be quite comforting to the Chief Justice. This award has certainly pleased the media as well as certain opposition politicians who are cheer leading for the Chief Justice in his decisions against the government. After storming the Supreme Court in 1997 during his own contempt case, Nawaz Sharif has become the Chief Justice’s most loyal servant. Even PTI’s Jahangir Tareen who only a few years ago was defending Gen. Musharraf’s attacks against the Chief Justice has had a change of heart now that the Chief Justice is attacking his political rivals.

There is, of course, one difference between the international legal organisations that are criticising the Chief Justice and the one that is granting him an award next month. That difference being that the Chief Justice himself is Vice-President of the organisation giving him the award.

It’s rather ironic, one must admit, that for all his talk about the importance of an independent judiciary, the Chief Justice is going to accept an award from an organisation that he himself sits as Vice-President. I will leave it to you, dear reader, to interpret this irony for yourself. As for me, I think that until the common man can get justice, perhaps the Chief Justice should be a little more humble about whether he deserves any awards – especially when they’re handed out by his own organisation.

Is the Judiciary really Independent?

Justice iftikhar Chaudhry with Military

One of the bedrocks of a democracy is the existence of an independent judiciary. Article 25 of the Constitution guarantees that “All citizens are equal before law and are entitled to equal protection of law”. But is this actually the case? Or are some citizens given special preference, while others are treated as suspect before they are ever even charged with a crime? Unfortunately, several recent events point to a troubling possibility – that not all citizens are equal before the law, and even if the judiciary is independent of the elected government, it is not independent of certain unelected institutions.

When Mansoor Ijaz’s revealed his famous memo back in October, the nation understandably wanted to know the facts of the case. Parliament initiated an inquiry, but the judiciary stepped in and set up their own commission claiming to be an independent institution. When Asma Jahangir appeared before the Supreme Court in defence of Husain Haqqani, however, she received a reprimand from the Chief Justice for daring to present evidence that contradicted the opinions of military generals.

The chief justice said: “Instead of giving importance to our own people (COAS and ISI DG) why should we consider the James’ affidavit more credible. Asma said army chief’s team brought the memo issue to his knowledge and on that basis he submitted his affidavit. The chief justice said armed forces have rendered lot of sacrifices for the defence of the country and they have respect for Chief of Army Staff (COAS).

The judiciary argued that it was the best venue for investigating the ‘memogate’ as it is independent of the political parties. But the elected government is not the only institution involved in the issue. Also involved are the unelected institutions of military agencies. If military officers are given preference by the Chief Justice, can the court truly be considered independent?

There are other questions related to the judiciary’s handling of the case that seem very problematic. Under what code of ethics, for example, is it okay for a lawyer representing one side of a case to publish an article in a major newspaper consisting of personal attacks against the character of the accused and his lawyer? And yet this obviously unethical act resulted in no response from the Chief Justice, no reprimand for the lawyer, no warning not to treat the case as sub judice. Does a veteran public servant not deserve the same basic respect as a military officer in the eyes of the court?

What about the fact that the entire ‘memogate’ case rests on the word of a man who also told a British newspaper that DG ISI was plotting a coup? The Supreme Court justified its commission to investigate claims about the memo based on Article 19A of the Constitution which guarantees “every citizen shall have the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law”. Is the possibility that military officers were plotting a coup not “a matter of public importance” to the Supreme Court? Writing in Dawn, attorney Waris Husain asks why evidence is only being gathered against one side of the case and not all institutions equally?

For arguments sake, let us assume that the allegations against Haqqani are proven to be true. In order to determine whether he committed treason under Article 6 by “abrogate[ing] or subvert[ing] or suspend[ing]…the Constitution” one must judge whether or not the military was actually attempting a coup. If the military were attempting a coup, a plea to outside powers to help protect the parliamentary governance instead of dictatorship would preserve, not subvert, the Constitution. The case becomes damming for Haqqani if the Army Generals are found to be innocent of said allegations. Either way, the Court should ask for all communications exchanged by Generals Pasha and Kayani in relation to a potential coup, if they wish to accurately assess which party committed treason.

Though the Court has yet to decide who will face charges, they have exclusively put Haqqani on the control list, leaving off the military generals who stand behind the petition. The military leadership not only retains its right to travel, but it was launching international investigations into Memogate before being given the right to do so. The matter most certainly should have been investigated, but the manner and source of an investigation are paramount to a court of law. The information from the military affidavits should be examined critically rather than being accepted as prima facia evidence against Haqqani.

This question becomes even more important when one reads what is actually in the Affadavit submitted by Mansoor Ijaz himself.

Page 78 of Ijaz’s affidavit makes an interesting read as it speaks of Pakistani government officials “who served at the highest levels of the military-intelligence directorates in recent years and senior political officers of the civilian government.” These words were part of Mansoor Ijaz’s email to Gen. James Jones, stating: “I am attaching herewith a document that has been prepared by senior active and former Pakistani government officials ….” Here, Ijaz speaks of government and intelligence officials and not of a diplomat (Haqqani).

If Mansoor Ijaz claimed that the memo was written by recent senior military-intelligence officials, should the court not also request the submission of communications between intelligence officers and Mansoor Ijaz?

According to page 17 of Mansoor Ijaz’s affidavit, he received a phone call from Husain Haqqani “about 5 or 6 days before I met with Gen Shuja Pasha in London” asking Ijaz why he was meeting with the DG ISI. Mansoor Ijaz’s op-ed was published on 10th October, and his meeting with Gen Pasha was on 22nd October. If Husain Haqqani learned about the meeting 6 days before it happened, that means that it had to have been scheduled even earlier than that. This means that Mansoor Ijaz and Gen Pasha had to be communicating almost immediately after the op-ed was published, if not before. Is the fact that DG ISI was having discussions with Mansoor Ijaz so early not relevant to the Supreme Court? Does the judiciary only have the authority to demand the phones, computers and passports of civilians? Is there another law for military officers? If so, is it written law? Or danda law?

Let us move away from the ‘memogate’ case and compare the ‘independent judiciary’ handled another case. In the case of murdered journalist Saleem Shahzad, reports from human rights organizations and international media also cast suspicion on the involvement of unelected agencies. A high-level judicial commission headed by Supreme Court judge Justice Saqib Nisar took up the question of who tortured and murdered Saleem Shahzad. Six months later, the judicial commission reported that they found…nothing.

The Saleem Shahzad Commission was asked to submit its report within six weeks of its formation. Six months down the line however, its final findings show little. The report, presented to the prime minister on Tuesday, has not held any institution or individual responsible for the abduction, torture and murder of the journalist, according to a member of the probe.

These events raise serious questions about what it means for the judiciary to be ‘independent’. Certainly there is no question that the justices are not under the influence of the civilian government. But the civilian government is not the only institution with an interest in recent judicial cases. If the judiciary cannot treat elected and unelected institutions the same, though, can it truly be considered ‘independent’?

Obituary for Lawyer’s Movement

Lawyers rally for confessed killer Mumtaz Qadri

In 2007, Gen Pervez Musharraf decided the law was inconvenient to his authoritarian whims, so he infamously attacked the judiciary, suspending and detaining the Chief Justice. The dictator’s action was seen by all as a bald faced attempt to crush dissent and rule with an iron fist. Rather than solidify his regime, though, his overreach gave birth to the Lawyer’s Movement, also known as the ‘Movement for the Rule of Law’, and the historic long march from Lahore to Islamabad two years later demanding reinstatement of the Chief Justice.

The movement gained international attention for Pakistan, and international acclaim for the lawyers who were seen as the vanguard of justice and integrity in Pakistan.

The movement to restore Chaudhry, and the constitution, and the rule of law, held out the hope of disinterring the liberal tradition. In a country where politics taint everything, many of the lawyers were independents. Pakistan’s bar associations were among the few bodies that had consistently selected their leaders through democratic elections; and the country’s 116,000 lawyers had chosen through their bar associations to commit themselves to protest. Ahsan was not then an officeholder, but he worked alongside the president of the Supreme Court Bar Association, Munir Malik, and Tariq Mahmood, a former judge who had quit rather than accept Musharraf’s blatant rigging of the 2002 referendum. Years of disappointment had made Pakistanis cynical about politics and public life, but these were men whose integrity put them beyond question.

Today, the lawyers’ reputation has become as black as their coats.

After Mumtaz Qadri shot Salmaan Taseer in the back, a murder he freely admits to, lawyers were seen showering the killer with roses, a shameful about-face that was not missed by the international press.

Instead, before his court appearances, the lawyers showered rose petals over the confessed killer, Malik Mumtaz Hussain Qadri, a member of an elite police group who had been assigned to guard the governor, but who instead turned his gun on him. They have now enthusiastically taken up his defense.

It may seem a stark turnabout for a group that just a few years ago looked like the vanguard of a democracy movement. They waged months of protests in 2007 and 2008 to challenge Pakistan’s military dictator after he unlawfully removed the chief justice.

Whether or not any particular lawyer believed that Qadri’s actions were defensible under the law, the way that the lawyers have behaved has shown that, as Saroop Ijaz observed, “this particular case is anything but ordinary”.

What has made the case even more extraordinary were reports this week that the judge who presided over the case, Pervez Ali Shah, has fled to Saudi Arabia after receiving death threats.

“The death threats have forced Judge Pervez Ali Shah to leave the country along with his family for Saudi Arabia,” Advocate Saiful Malook, the special prosecutor in the Qadri case, told Dawn on Monday.

He said sensing the gravity of the situation the government had arranged the lodging of Mr Shah and members of his family abroad. “Although security was provided to the judge and his family members, the government on the reports of law-enforcement agencies opted for sending him abroad,” he said.

There were also unconfirmed reports that extremist elements in religious parties had fixed the head money for the judge. “There were such reports but there was a potential threat to the life of Mr Shah and his family members,” he said.

And where are the lawyers now as one of their own is once again forced from the bench by forces that refuse to accept the rule of law when it is inconvenient to their agenda? Where is the long march demanding the return of Judge Pervez Shah and defence of an independent judiciary?

While it is true that some of the leaders of the lawyer’s movement such as Asma Jahangir have remained true to their principles and demanded that the rule of law not be sacrificed to the rule of mobs, these few souls have been abandoned by their colleagues whose silence in the face of the new authoritarian threat is the public death notice for the lawyer’s movement.