So, is London the last refuge for the Kleptocrats-Criminals?

The country that taught us lesson regarding Rule of Law, Rule of Politics is winning there!

On September 16, 2016, Dawn published the following Situationer, which explains how law may not win over politics in UK:

Politics, not law, likely to decide murder probe
By Owen Bennett-Jones

Here is the text of the piece:

LONDON: Shortly before 17:30 on Sept 16, 2010, Dr Imran Farooq was on his way home from work when he was murdered outside his home in Green Lane, Edgware, in north London. As the police subsequently reported, a post-mortem gave his cause of death as multiple stab wounds and blunt trauma to the head.

For Dr Farooq it was a violent, brutal end. For the MQM, it was the start of a process that six years later would leave the party divided, weakened and under assault from the Pakistani state. We can never know what would have happened had Imran Farooq not been murdered but MQM insiders admit that it was an incident that changed everything.

The British police investigation has been remarkably thorough. Detectives from the Counter Terrorism Command have spoken to 4,555 people, reviewed 7,697 documents, followed up 2,423 lines of inquiry and seized 4,325 exhibits.

At each stage the police faced obstacles. Early on, for example, details of visa applications had to be prised out of a reluctant British consulate in Karachi. Despite such difficulties the police eventually identified two suspects. One, Muhammad Kashif Khan Kamran subsequently died in Pakistani custody: the other, Mohsin Ali Syed is alive and the subject of a British extradition request.

After the murder inquiry came other investigations. The police found not only piles of cash in the MQM’s buildings but also a receipt for weapons and explosives in Altaf Hussain’s home. The tax authorities started taking an interest and the MQM leader’s suggestion that his supporters play football with the heads of Karachi police officers led to a hate speech investigation.

And yet there were no charges. The MQM insists this is because it is innocent. Others have different theories. Increasing numbers of British members of parliament are asking why the cases are deadlocked. Even some of those under investigation have fully expected to be charged. Their own lawyers told them charges were inevitable.

UK protecting MQM?

It is difficult to escape the conclusion that had the MQM been a jihadi outfit there would have been charges long ago. Which raises the question: why is the British state protecting the MQM?

The answer is complicated because the reasons have changed over time. When Altaf Hussain first arrived in London the British saw him as an asset. There were regular contacts — several each week — between the MQM leadership, the Foreign Office and MI6. With a consistent haul of between 20 and 25 Members of the National Assembly, the MQM often held the balance of power in Pakistan and from time to time had federal ministers. When Britain needed things done in Pakistan it was in the happy position of having a powerful Pakistani politician beholden to British hospitality.

At various times an array of Pakistani politicians — driven, let us not forget, by self-interest rather than principle — demanded London make legal moves against the party. People who had been directly threatened in Altaf Hussain’s speeches paid visits to the British High Commissioner in Islamabad demanding action. All were brushed aside with the standard response: “He is a British citizen: it is none of your business”.

After Imran Farooq’s murder the mood of the British Foreign Office gradually began to change. Diplomats who in the past had said: “we have no evidence against the MQM” started to say: “of course, they are rather unsavoury but it’s a matter for the police”.

The British ship of state, it seemed, was adjusting itself to the possibility that there would indeed be charges.

But then a new factor come into play: it became known that two senior MQM officials had given statements to the British police that some of their funding came from India. Paradoxically, the revelation helped the MQM because it raised the possibility that evidence of India’s funding of terrorists could be heard in a British court. Indian officials made it clear that this would be unacceptable. Given the high priority Britain has given to improving its trade relationship with India, Delhi’s concerns were taken seriously.

Having initially been motivated by a desire to protect its own interests, London found itself trying to protect India’s. Which is why just a month ago there was every chance that all the cases would have been dropped.

The Aug 22 speech

And then Altaf Hussain made his August speech. The British police had become so accustomed to their investigations into the MQM leading nowhere that their initial response was to shrug their shoulders and say it was a matter for Karachi law enforcement authorities. But the speech and the divisions it created within the MQM had created a new political situation and the next day – when Scotland Yard rather belatedly realised this – the British police set up a new incitement investigation.

The incitement could satisfy everyone. The British could help overcome their PR problem in Pakistan by at last being able to say: “we have moved against the party, just as many Pakistanis demanded”. While Islamabad’s would prefer money laundering charges so that the Indian funding evidence is heard in a British court, it would welcome charges of any kind. For its part, India has no reason to stand in the way of a British trial as long as it steers clear of the funding issues.

So six years after Imran Farooq was murdered, the MQM has been bashed and battered but it has still not been knocked out. The pressure that Chaudhry Nisar Ali Khan is applying on London is having an impact, especially in the Foreign Office, but there is still some way to go before London decisively changes it attitude. These cases have a tendency to drag on longer than anyone expects but it should be the case that by the seventh anniversary of Imran Farooq’s death we will finally know the legal fate of the MQM’s London leadership. And the history of the whole story suggests that the outcome will depend not so much on the law but on politics.

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And now the The New York Times has this to say on the issue:

London Rolls Out the Blood-Red Carpet for Kleptocrats

By BEN JUDAH

DEC, 29, 2016

LONDON — Six years ago, the government of Kurmanbek Bakiyev nearly killed me. I remember it well, because it killed a man standing near me. It wasn’t specifically me, or him, they were trying to kill. They were simply firing live rounds at protesters.

This was a forgotten massacre in an overlooked country. The killings took place in Bishkek, the rickety capital of the Central Asian republic of Kyrgyzstan, at the start of the 2010 revolution that overthrew Mr. Bakiyev’s autocratic rule.

His regime had been about one thing: personal plunder. But the Kyrgyz people’s patience had finally worn out. That April I was among the crowd near the presidential palace chanting “Stop corruption now” when the guards started shooting.

I ran for my life, but the Kyrgyz man nearby was not so lucky. I saw his bloodied, punctured body being dragged away by other protesters. As the regime teetered and fell, Mr. Bakiyev fled and found refuge in Belarus. Some days later I paid a visit to the Bishkek morgue to record how many people had been shot. I saw plenty. More than 40 protesters were killed.

This is why it angers me that today, the dictator’s son and confidant, Maxim Bakiyev, lives in a mansion purchased in 2010 for $4.3 million in a London suburb less than 20 miles from my own family home. Little did I know, when I flew back after the Bishkek massacre, that Mr. Bakiyev was also traveling to Britain.

Of course, it was no surprise, because London has become a personal valet to men like him: It’s a dictators’ safe space, where billions of dollars are laundered through the London real estate market every year, contributing to what the National Crime Agency estimates to be an annual total of more $125 billion laundered in Britain.

In Kyrgyzstan, Maxim Bakiyev was convicted in absentia, in a series of cases over 2013 and 2014, for attempted murder, embezzlement of millions in state funds, illegal privatization of public land and corruption in selling off state assets; he received sentences varying from 25 years to life. His lawyers say the charges were politically motivated, and Mr. Bakiyev has claimed political asylum in Britain. (When I contacted the Home Office to request an update on the status of this claim, I was told that government policy is not to comment on any individual case.) In London, he has enjoyed a life of genteel seclusion, with a library, a home cinema and a bar.

The Bakiyev regime was always seen as a family affair, a kleptocratic triumvirate of the son, his father and his uncle. For this reason, Maxim Bakiyev has remained one of the most loathed figures in his hard-done-by homeland.

When I learned that Mr. Bakiyev lived in London, I decided to research the ownership of the mansion he lives in. But this one simple thing is impossible to discover; the true owner, and the true origins of the money, are cloaked under an anonymous offshore company registered in Belize.

The watchdog group Global Witness is calling for an investigation into Mr. Bakiyev’s affairs. The Kyrgyz authorities, according to Global Witness, believe that this Belize-registered company is linked to an alleged money-laundering scheme used to funnel state funds out of Kyrgyzstan. Global Witness’s 2015 report on Maxim Bakiyev, “Blood Red Carpet,” criticizes British authorities, lawyers and real estate agents for failing “to prevent a man linked to corruption and violence from setting up home in a luxury suburb in London.”

But how would it be otherwise? British law is on the side of the kleptocrats. All an autocrat on the run has to do is create a shell company to hide his identity and the source of his illicit wealth, and then use this instrument to purchase property incognito. Britain’s best-paid brokers and lawyers are here to help — and will ask no awkward questions about the provenance of their clients’ cash.

Such anonymous companies now own nearly 40,000 London properties. Some of these purchases may be entirely legitimate and innocent, but these tools of secrecy are well known to be favored by money launderers: The anticorruption organization Transparency International has found that this technique has been used for three-quarters of properties whose owners have been investigated for corruption in Britain.

Just because there aren’t bodies on the streets of London doesn’t mean London isn’t abetting those who pile them up elsewhere. The British establishment has long feigned ignorance of the business, but the London Laundromat is destroying the country’s reputation. Across the former Soviet Union, Britain is now seen as a partner in corruption, not democracy, for elites seeking to asset-strip their own states. The elected president of Kyrgyzstan, Almazbek Atambayev, has repeatedly called — in vain — for Britain to stop sheltering “a guy who robbed us.”

Amid this shame and gloom, one ray of light has emerged: a serious chance of the reforms we need to stop human rights abusers from using London real estate to hide their wealth. In Parliament, a growing cross-party band of members is seeking to amend the Criminal Finances Bill, now making its way through the legislative process.

This amendment, named after the Russian lawyer and corruption whistle-blower Sergei L. Magnitsky, who died in prison in suspicious circumstances, would allow officials and organizations like Global Witness to apply for a court order to freeze the assets of human rights violators. When presented with evidence and a clear public-interest case, government ministers would be legally bound to act.

Whether this reform is adopted will tell us much about who Prime Minister Theresa May really is. If her government kills the amendment, it will show that she is content for Britain to remain a safe haven for dictators — while London’s bankers, lawyers and real estate brokers make commissions on their blood money. It’s time London rolled up the red carpet.

Ben Judah is the author, most recently, of “This Is London.”

Bridging The Communication Gap With PPP!

With time, disconnect with the Pakistan Peoples Party is widening. The more one listens to news and reads newspapers, the more one is convinced of the distending communication gap between the PPP and non-PPP camps. It seems both of them are talking to themselves only. Watching talk shows on TV channels, where representatives from both camps talk face to face, is an experience these days as they appear to be an exercise in monologic dialogue, without communicating a bit!

No doubt, both camps are talking quite heavily meaningfully. When Khawaja Saad Rafique, or anyone from the Pakistan Muslim League (N), says the PP is using all its energies in defending the President Asif Ali Zaradri against his Swiss money laundering cases, when Fauzia Wahab or anyone from the PP says media is targeting President Zardari, and when Qamar Zaman Kaira says the PP is always a victim of anti-people forces, they all are talking meaningfully. In fact, they mean very seriously what they say. But they do not understand each other. Or the PP does not want or intend to understand the other party. There lies the disconnect, the communication gap!

Being in government, it is incumbent on the PP, and for that matter whoever it is, to heed meaningfully to every piece of criticism, blame or just any expression of hatred, whether it comes from the non-PP camp or from its own partners. That is better for its own health! However, the PP not taking any such thing in any serious manner amounts to its own failure, and implies its having been plagued with a psychological disorder of very serious nature. If it is so, it is fatal for a nation and its country, when a whole political party, and one with such a good following, and one wherein sanity has been pushed to its fringes (read Safdar Abbasi, Naheed Khan) comes to be such a patient who needs to be quarantined. The latest ‘internal’ evidence to this diagnosis is the PP’s own decision to boycott a media group, Jang Group and Geo.

In fact, a person may catch such a psychological disorder, for a political party comprising a good many number of people catching it is next to impossible; only if all the members of its leadership layers are diagnosed thus which is almost an unlikely phenomenon. A political party may have other diseases, as in the present case, PP is afflicted by populism which is characterized by utter denial of going by any norms and rules. That is why mostly it is under the PP governments that rules and laws are laid down to show its loyalty to the same. At the same time it is under the PP governments that norms, traditions, rules, laws, constitutional provisions are not adhered to. For it, the norm is to disregard, ridicule and trample them. Appointing Justice Deedar Hussain Shah (R) as Chairman NAB is the newest episode to this drama!

Thus, it may not be far from the truth that such a posture in fact is a strategy to take liberty and to act freely. The history of events that unfolded since February 2008 general elections proves that.

Never in the history of Pakistan was a political party’s government especially that of PP, welcomed with such enthusiasm by the opposition parties, and all other elements, as was the case this time with PP’s government. Recall the friendly and encouraging sentiment prevailing throughout the political environment both inside and outside the parliament. All the political parties, such as PML (N), Awani National Party, Pakistan Muslim League (Q), Muttahida Qaumi Movement, Jamiat-e-Ulama-e-Islam (F), which otherwise would make a robust opposition, were on the side of the PP. They all turned into coalition partners with PP to materialize the dream. The way Yusuf Raza Gilani was made Prime Minister and Asif Ali Zardari President no one would believe now. Both print and electronic media were writing and telecasting goodwill to the PP. Quite incredible, nowhere could be found slightest hint of difference and disagreement vis-à-vis PP.

There is more to it, all that was in perfect sincerity on the part of the non-PP camp, without any bad faith. Its sole reason undoubtedly was successful culmination of a mass movement under the leadership of lawyers against General Musharraf’s dictatorship, and in favor of an independent judiciary, constitutionalism, rule of law, and fundamental rights, at the end of which PP had come to form the government. On that high-tide, PP could have made miracles for the people of Pakistan. Alas, it ruined and lost all that golden moment!

It’s no place to narrate all those events that gradually exposed malicious intent of the PP leadership, and deliberate thwarting of the achievements of that mass movement. It fooled not only PML (N), and with it all the political forces inside and outside (Jamat-e-Islami, and Tehreek-e-Insaaf) the parliament but also all the ordinary people of Pakistan. Just like its founder, Zulfiqar Ali Bhutto, the present PP leadership tried to cheat on all and sundry who came on its side, partnered with it, and supported it. The tenure of this PP government presents more than a graphic representation of treacherous callousness of the PP leadership!

The latest Nawabshah speech (October 11) of President Asif Ali Zardari, replete with the same old rhetoric, and the adoption of the same hazy and symbolic rhetoric by the Prime Minister Yusuf Raza Gilani also, proves the same point that the disconnect or the communication gap is but a deliberate strategy to refuse to follow the norms, rules, laws, and constitutional provisions. Whatever its motives are, the PP leadership has taken refuge behind the populist parlance. In this vein, every piece of criticism of whatever nature is dumped under the carpet of conspiracy against the people of Pakistan, and their Party, i.e. the PPP.

As the patient, i.e. PP, by boycotting Jang and Geo Group, is shutting itself in a shell of its own making to achieve what it wants to achieve, the realistic way out is to follow the same course of action to get it out of the communication gap with others. Not only will this break its disconnect, but will bring the PP to come to communicate with others meaningfully in terms of norms, rules, laws, constitutional provisions, and adherence to them.

Thus in order to save the country and the nation from the dangerous consequences of the PP’s populist politics, it is necessary, like the last ditch effort made to revive a dying patient, to quarantine all the layers of the PP leadership. May it be suggested that all the private media and news outlets should not invite any representative of the PP for interview, talk show, etc, and they should not accept any such invitation from the PP camp also. Let them chirp on the PTV and Radio Pakistan alone, and lonely. Only the vital news coming from the government’s quarters should be printed and aired.

Though, no other option seems viable to make the PP leadership realize the significance of their deliberate disconnect or communication gap with others but to subject it strictly to rules, laws, and constitutional provisions operative in the country; however, as a test case a boycott in terms of PP’s presence on print and electronic media may be resorted to - in the hope of bringing it to communicate meaningfully with others, and thus be able finally to deliver!

Note: This article was completed in October 2010.

The American contradiction

Peace, commerce and honest friendship with all nations; entangling alliances with none

-Thomas Jefferson, 1743-1826.

American people create abundant wealth. So, they are prosperous and happy. It is only because they are economically freer than many nations on earth. In consequence, that makes them politically freer. What makes all that possible is their declaration of independence, constitution, bill of rights, and their independent courts, which promptly ensure the continuance of rule of law, which in turn help a free media to exist, and it is this combination that guarantees personal freedoms to American people: to do whatever they like to do, of course, under the state and federal laws. Despite their state’s encroachments on their freedoms especially after 9/11, they are free to pursue economic, political, social, intellectual, philosophical, moral, spiritual, aesthetic enterprises, or whatever they like to seek.

In sum, it is their love for personal freedom that characterises and distinguishes them from other people. In that they are unique. That should make them enviable to all other nations that lack this ultra-care for personal freedom. But this does not form the gist of America. It is something else.

Let me narrate a personal experience to elaborate on that point.

In Washington D.C. where the fate of smaller nations is written, what fascinated me most was the National Archives. It displays some original pages and initial facsimiles of the American Charters of Freedom, i.e. Declaration of Independence, US Constitution, and Bill of Rights. It also displays an original copy of the Magna Carta (1297): the document which foretold the spirit of the Charters of Freedoms.

All these documents have been placed in a building of highest grandeur in a way so that natural light is available therein. In order to protect (or to prolong) the life of these documents, artificial light has been avoided. Flash photography is not allowed either. That is fantastic! But that is American also! These documents are worth a museum, and they have rightly been archived. I do not know if these documents are available in another building located a few miles away from the National Archives, i.e. White House. I do not know if George W. Bush, Jr. has ever read them. I do not know, either, if any congressman or senator has ever gone through them and understood them well. What I do know is that American government and especially its foreign policy has entirely drifted from what those documents signify and what they stand for.

Also, in the same building are displayed many a quote of the American founding fathers and other notables which belie what America means today to the world outside America. Not only in the National Archives, but in other places such as Jefferson Memorial all the quotes expose the reality of the present-day America. Here it needs not to go into the details of those quotes, since the principle of personal freedom is sufficient to make the point. Practically, this principle manifests itself in a negative assertion, rather than in a positive one as it appears to be. It may be worded thus: ‘You are free to do whatever you like until and unless you do not encroach on my freedoms.’ That is really an achievement of American society and government! I am all praise for that.

However, it is not the whole story. You talk to American people what is going on in Iraq, Afghanistan, Pakistan; in the first instance, they are just oblivious of it. Or at best, they will offer a personal apology: ‘Oh that is what I can do! I am sorry for that!’ That does not help much to dispel the impression that more or less American society is like an island in a world deeply involved in many such conflicts for which the responsibility rests on the American government. My argument focuses on that blatant contradiction.

No doubt, we can retreat to a hermitage, and live there in peace we wish to be in. But we can never be in such a retreat after harming others. Maybe we are forgiven once or twice. In case we continue harming other people, and presume that we will be safe in our retreat, that’s our forgetfulness, to use a euphemism. We need to know we are going to be chased, and paid in the same coin. In other words, if we think that rule A is only valid for us, and for other people there is another rule B, we are living in a contradiction. We know well we cannot live long in a contradiction. Someone is going to explode that contradiction. We are in the midst of that explosion.

So, the sort of a principled foreign policy of American government towards other people that “you are not free to do whatever you like whether you encroach on my freedoms or not’ contradicts its sort of a principled internal policy towards its own people that ‘you are free to do whatever you like until and unless you do not encroach on my freedoms.’ The point of argument rests on the understanding that just like American people, every people on earth need a constitution that ensures them their inalienable personal freedoms, independent courts that take care of rule of law for them, and a constitutional democratic government to represent them. Sure, it is no privilege of American people only. Naturally, it is no privilege of American government to deprive other people of these necessities. Or for that matter, no nation or people can be allowed this privilege such as former Soviet Union tried its hand on against which American government fought both the cold and hot wars so passionately to secure freedom and human rights for the people in distress.

In this regard, no excuses, pretexts or expediencies can make for any allowance. It needs to be realised that 9/11 belongs to a class of effects; it’s no part of the list of causes. Moreover, whatever the war against terror requires never means abandoning the principles. How come that Pakistani people do not need a constitutional government, independent judiciary, rule of law only because their government has made their country a frontline ally of US government in the war against terror. Only because a dictator, who has trashed the Constitution, sent all the superior court judges home to keep himself in power, and made the country a fiefdom of the elites of Pakistan, pleases the US government, Pakistani people should have nothing of the sorts.

This is just outrageous: kill one people to save others and for nothing. The saner Americans must realise that they are not going to win this war against terrorism. Beyond envy, religious fanaticism, historical animosity against US, there is something very real underneath it. It is that blatant contradiction. It needs to be addressed urgently, and until and unless it is addressed to with an open mind and heart, nothing is going to make any difference.

It is for both American people and government to realise that though American people create abundant wealth, but of course they are not going to create this wealth continuously if this is going to be spent on such useless wars. It may go on for another ten, twenty or at most fifty years that such wealth is available to American government, but in the end, as has been happening in history, such wars will drain all the resources and energies of the American people. This is how empires meet their fall. Wars and such whimsical wars without addressing the core issues resemble death wish.

That’s the issue. In order to survive both as an epitome and an emblem of personal freedom for all the people on this earth, American people need to rejuvenate their government with the fountainhead of Charters of Freedom. They need to go back to the basics. They need to rediscover those principles contained in the documents which have been archived. They need a refresher in their founding fathers’ teachings. They need to let there be equally valid principles for all the people on this earth. They need to make their government to win hearts of the people, not the heads of their government. That’s the only way to save America and not let it meet the tragic end of an empire.

Note: This article was completed in July 2008.

The perils of judicial populism

Judges rule on the basis of law, not public opinion, and they should be totally indifferent to the pressures of the times.

- Warren E. Burger (1907-1995), Chief Justice, US Supreme Court.

The best thing that explains the Supreme Court's (SC’s) July 20 judgment is: it is never too late to mend. As is being claimed, the judgment is historic, it is daring, it is a people's verdict, and a turning point in Pakistan's history. Of course, it is all these or maybe more, but things are meaningful only in a context. Without context, they lose their import. This is more so with the SC's judgment that unanimously reinstated Mr. Justice Iftikhar Muhammad Chaudhry, Chief Justice (CJ) of Pakistan, setting aside the presidential reference against him.

Besides its own significance, what makes the judgment unusually extraordinary are the reservations, apprehensions and misunderstandings being thrown out from all the quarters concerned, including those who support it. Hence, it is of utmost importance to be able to see this judgment in its proper context so that its implications may be figured out.

There are three temporal contexts the judgment may be placed in: i) What transpired before the reference was filed against the CJ; ii) What transpired from the moment the CJ was in the Camp Office of the President of Pakistan and Chief of Army Staff, General Pervez Musharraf, to the moment the judgment was announced regarding the CJ’s constitutional petition in the SC of Pakistan, and iii) What is transpiring now after the judgment and what will transpire in future.

Let's start with the second context. It is said that the lawyers’ movement for the restoration of the CJ was inspired by political motivations and that the lawyers were committing to politics. The objection was debated at every forum. But the whole debate missed the point that neither the CJ nor the lawyers were motivated by power politics. The lawyers are not a political party. They are a heterogeneous lot composed of diametrically opposed political and religious groups and parties. The CJ was (and fortunately is) a government official and was fighting his case first in the Supreme Judicial Council and then in the SC of which he was the chief judge. He could not be shown having any such intentions. Nor has any such evidence come to the fore.

It was further objected that while traveling to address the Bar Associations in various cities, he led huge processions. The most 'valid' objection on his traveling to Peshawar by road may be why he did not fly to Peshawar? It was the first travel of the CJ after being rendered ‘ineffective’. He and his lawyers never knew that huge crowds were awaiting the CJ at every milestone.

The objection was that holding rallies was the privilege of political parties’ leaders only, and that the processions were organised by the CJ and his lawyers to build up a certain campaign. Obviously, it was not like that. The people came on their own to these rallies to show their appreciation of the CJ's 'no' to a dictator. After the Peshawar travel and address, the CJ’s lawyers began the practice of announcing the CJ's schedule about going to a city to address the Bar Associations beforehand. Did the CJ or lawyers make any call to the people to come to welcome the CJ? Never!

See what the government was doing to establish its ‘writ’, preparing the affidavits and more references against the CJ in a most bizarre manner. Last but not least, it was trying to influence the honourable judges hearing the CJ’s petition. But the question is whether the CJ himself indulged in any such activity unbecoming of his status. He never spoke a word outside the purview of the constitution. He made speeches and read papers which highlighted the constitutional working of a government and, what is most important and emblematic of his judicial activism, he exhorted the lawyers for massive public interest litigation. Is all this political?

The historic travel of the CJ from Islamabad to Lahore was an eye-opener. The government and its allies shaped things on May 12 in Karachi. The Karachi carnage was the decisive point of the battle that was being fought outside the courtroom, after which apparently the government started retreating from this front. But as the wind had changed its direction, it had to step back from this front also, leaving the ban intact on live coverage of the CJ’s travels and addresses.

Perhaps the government wanted the CJ to sit in his house and see how the court proceeds and decides about his case. From the government’s point of view, the legal community should not have come to the CJ’s aid or to his rescue. All this read together amounts to saying that they should have given the government and its machinery an arena where it could demonstrate its muscle power. That this did not happen frustrated the government, and finally made it fatally helpless. One of the more dangerous objections was that all those CJ’s processions, rallies and addresses were aimed at influencing the honourable court. Some of the CJ’s counsel also made the mistake of uttering some public statements which were unbecoming of them. The statements earned a bad impression for the lawyers’ movement, which was being waged in the name of the rule of law.

The cogency of this objection is fatal. The government, its advocates, its supporters and other independent observers were right in asking, what’s the use of this movement if the case is sub judice? They were justified in raising the questions on the nature, character and objectives of this movement. When asked would they accept the court's verdict, the counsel of the CJ used to reply that they would not if it favoured the government. They were further asked, didn’t they trust the SC? They said they did, but they would not accept a judgment like Justice Munir’s. How can one trust a thing and at the same time mistrust it? The lawyers had no clear answer to this objection. They are still without one.

If the CJ's case was before the country's highest court of law, what was the need for the lawyers, civil society organisations, political activists and ordinary people to come out on the streets? This is the trickiest question that must be answered to understand the July 20 judgment. Also, this brings us to the first context: What transpired before the reference was filed against the CJ?

There have been attempts at finding answers to the question of what transpired before the reference was filed against the Chief Justice (CJ). The focus is the judiciary’s past character. The boldest statement in this regard termed the judiciary as the B team of the Pakistan army and appealed to it to act instead as an A team. The first step towards this transformation of the judiciary was indicated by the reinstatement of the CJ. It was clarified that since in the past the judiciary had been legitimizing military takeovers, it was likely that it did come under pressure of the present military regime to make an influenced verdict. There is a view that says that had the lawyers not come out to rescue the CJ, he may have still been in a state of house arrest. It was the pressure of this movement that got him released.

When his case was before the full bench, weren’t the lawyers then supposed not to be around him? Wasn’t it up to the apex court to see to his petition? Why were the lawyers, civil society and political activists there then? It was none of their business to be around the CJ. Another such attempt presently in vogue takes strength from late Justice Dorab Patel. He is being quoted as justifying his role in the bench that validated the military takeover of General Ziaul Haq on the plea that how could a few judges stop the coup leader when a nation of 160 million remained silent?

The participation of civil society organisations and political and religious parties worked as support to the judges in stopping a coup leader. Does this prove that it was this movement that caused the judgment of July 20? Of course it did, but in the eyes of only those who hold such a view. It is the view of those who are Dorabians and believe that without such a movement no such judgment could have come from the full bench of the apex court. It means that the custodian of the Constitution, the judiciary, needs the people’s support to protect, defend and interpret the Constitution. Without this support, the July 20 verdict could not be such a historic one. If it is so, and as it seems it is so, it is most unfortunate for our country and the constitution as well.

It is here that we enter the third context. What is transpiring now after the judgment and what will transpire in future regarding the judgment? The ethos created by the judgment may appropriately be termed as judicial populism. Under the circumstances, what is more depressing is that we have no inkling of how dangerous and fatal this judicial populism may prove to be. This view is corroborated by the sheer absence of the view that judgments are made in accordance with the provisions of the Constitution. Whoever talks about the July 20 judgment, links it with the lawyers’ movement.

They admit that judges are human beings and are influenced by the circumstances prevailing outside the court. But in the same breath, they declare that they judge according to the relevant laws. They are, in fact, caught in a vicious circle. They have no way out. Why? Because they do not want to acknowledge that their movement was a spontaneous outrage against an outrageous act of a dictator that was deliberately transformed into an organised movement. The focus of their movement was the restoration of the CJ and nothing else. It is evident that it has exhausted itself the moment its goal was achieved.

No doubt, their movement gave rise to slogans of utmost importance such as an independent judiciary, rule of law, supremacy of the constitution, and civilian democratic rule. Have these goals been achieved? Or will they be achieved in the near future? The first step in this direction has already been taken with the restoration of the CJ and undermining of the anti-constitution forces and strengthening of the judiciary. Some of the signs, such as the intimidation of lawyers who disagreed with the mainstream lawyers and advocated the government’s case, now seem to have started maturing. Two recent incidents of intimidation — one of a known journalist Khalil Malik, and the other of a lawyer Naeem Bukhari by the legal fraternity — are symptomatic. This indicates that the lawyers’ movement is deliberately being transformed into judicial populism.

It may be asked why were the lawyers afraid of losing the fight? Why didn’t they trust the court? Why did they resort to agitation? Why even now are they and the representatives of civil society and the intelligentsia justifying the popular support to the court to deliver a popular judgment? The truth in fact is that they did not trust the court. Why so? The history of the court’s judgments in such matters has been disappointing altogether. It seemed as if there was no constitution. The courts were there to cook whatever was needed to be offered to the uniformed guests. With such a background, how can one, and if that one happens to be a lawyer who knows well the track record of the courts, trust the courts?

But that’s not all. The story needs to be retold. The man who inhabits the land of Pakistan has no moral values. He has no integrity of character. He is a man of flesh only. He is not a man of principle. He has no regard for the means. His ends justify his means. He has no conscience. In sum, the quality of man in Pakistan is at its lowest. How can then judges go beyond this state of affairs? It is admitted even today by everyone. Judges, whether retired or not, argue like this. After all judges are human beings. This justifies every act of theirs.

People cannot be blamed for whatever has happened. What is required of a judge is integrity of character. Judicial populism, in many people’s view, destroys whatever little is left of the rule of law in Pakistan. It will destroy supremacy of the Constitution, independence of the judiciary, and turn the society of Pakistan into adventurous warring groups of gangsters. My Lords, so many people like me who believe in the rule of law, need to be convinced that you did not need any popular movement to issue the July 20 verdict.

Note: This article was completed in August 2007.

The perils of judicial populism

Judges rule on the basis of law, not public opinion, and they should be totally indifferent to the pressures of the times.
- Warren E. Burger (1907-1995), Chief Justice, US Supreme Court.

The best thing that explains the Supreme Court's (SC’s) July 20 judgment is: it is never too late to mend. As is being claimed, the judgment is historic, it is daring, it is a people's verdict, and a turning point in Pakistan's history. Of course, it is all these or maybe more, but things are meaningful only in a context. Without context, they lose their import. This is more so with the SC's judgment that unanimously reinstated Mr. Justice Iftikhar Muhammad Chaudhry, Chief Justice (CJ) of Pakistan, setting aside the presidential reference against him.

Besides its own significance, what makes the judgment unusually extraordinary are the reservations, apprehensions and misunderstandings being thrown out from all the quarters concerned, including those who support it. Hence, it is of utmost importance to be able to see this judgment in its proper context so that its implications may be figured out.

There are three temporal contexts the judgment may be placed in: i) What transpired before the reference was filed against the CJ; ii) What transpired from the moment the CJ was in the Camp Office of the President of Pakistan and Chief of Army Staff, General Pervez Musharraf, to the moment the judgment was announced regarding the CJ’s constitutional petition in the SC of Pakistan, and iii) What is transpiring now after the judgment and what will transpire in future.

Let's start with the second context. It is said that the lawyers’ movement for the restoration of the CJ was inspired by political motivations and that the lawyers were committing to politics. The objection was debated at every forum. But the whole debate missed the point that neither the CJ nor the lawyers were motivated by power politics. The lawyers are not a political party. They are a heterogeneous lot composed of diametrically opposed political and religious groups and parties. The CJ was (and fortunately is) a government official and was fighting his case first in the Supreme Judicial Council and then in the SC of which he was the chief judge. He could not be shown having any such intentions. Nor has any such evidence come to the fore.

It was further objected that while traveling to address the Bar Associations in various cities, he led huge processions. The most 'valid' objection on his traveling to Peshawar by road may be why he did not fly to Peshawar? It was the first travel of the CJ after being rendered ‘ineffective’. He and his lawyers never knew that huge crowds were awaiting the CJ at every milestone.

The objection was that holding rallies was the privilege of political parties’ leaders only, and that the processions were organised by the CJ and his lawyers to build up a certain campaign. Obviously, it was not like that. The people came on their own to these rallies to show their appreciation of the CJ's 'no' to a dictator. After the Peshawar travel and address, the CJ’s lawyers began the practice of announcing the CJ's schedule about going to a city to address the Bar Associations beforehand. Did the CJ or lawyers make any call to the people to come to welcome the CJ? Never!

See what the government was doing to establish its ‘writ’, preparing the affidavits and more references against the CJ in a most bizarre manner. Last but not least, it was trying to influence the honourable judges hearing the CJ’s petition. But the question is whether the CJ himself indulged in any such activity unbecoming of his status. He never spoke a word outside the purview of the constitution. He made speeches and read papers which highlighted the constitutional working of a government and, what is most important and emblematic of his judicial activism, he exhorted the lawyers for massive public interest litigation. Is all this political?

The historic travel of the CJ from Islamabad to Lahore was an eye-opener. The government and its allies shaped things on May 12 in Karachi. The Karachi carnage was the decisive point of the battle that was being fought outside the courtroom, after which apparently the government started retreating from this front. But as the wind had changed its direction, it had to step back from this front also, leaving the ban intact on live coverage of the CJ’s travels and addresses.

Perhaps the government wanted the CJ to sit in his house and see how the court proceeds and decides about his case. From the government’s point of view, the legal community should not have come to the CJ’s aid or to his rescue. All this read together amounts to saying that they should have given the government and its machinery an arena where it could demonstrate its muscle power. That this did not happen frustrated the government, and finally made it fatally helpless. One of the more dangerous objections was that all those CJ’s processions, rallies and addresses were aimed at influencing the honourable court. Some of the CJ’s counsel also made the mistake of uttering some public statements which were unbecoming of them. The statements earned a bad impression for the lawyers’ movement, which was being waged in the name of the rule of law.

The cogency of this objection is fatal. The government, its advocates, its supporters and other independent observers were right in asking, what’s the use of this movement if the case is sub judice? They were justified in raising the questions on the nature, character and objectives of this movement. When asked would they accept the court's verdict, the counsel of the CJ used to reply that they would not if it favoured the government. They were further asked, didn’t they trust the SC? They said they did, but they would not accept a judgment like Justice Munir’s. How can one trust a thing and at the same time mistrust it? The lawyers had no clear answer to this objection. They are still without one.

If the CJ's case was before the country's highest court of law, what was the need for the lawyers, civil society organisations, political activists and ordinary people to come out on the streets? This is the trickiest question that must be answered to understand the July 20 judgment. Also, this brings us to the first context: What transpired before the reference was filed against the CJ?

There have been attempts at finding answers to the question of what transpired before the reference was filed against the Chief Justice (CJ). The focus is the judiciary’s past character. The boldest statement in this regard termed the judiciary as the B team of the Pakistan army and appealed to it to act instead as an A team. The first step towards this transformation of the judiciary was indicated by the reinstatement of the CJ. It was clarified that since in the past the judiciary had been legitimizing military takeovers, it was likely that it did come under pressure of the present military regime to make an influenced verdict. There is a view that says that had the lawyers not come out to rescue the CJ, he may have still been in a state of house arrest. It was the pressure of this movement that got him released.

When his case was before the full bench, weren’t the lawyers then supposed not to be around him? Wasn’t it up to the apex court to see to his petition? Why were the lawyers, civil society and political activists there then? It was none of their business to be around the CJ. Another such attempt presently in vogue takes strength from late Justice Dorab Patel. He is being quoted as justifying his role in the bench that validated the military takeover of General Ziaul Haq on the plea that how could a few judges stop the coup leader when a nation of 160 million remained silent?

The participation of civil society organisations and political and religious parties worked as support to the judges in stopping a coup leader. Does this prove that it was this movement that caused the judgment of July 20? Of course it did, but in the eyes of only those who hold such a view. It is the view of those who are Dorabians and believe that without such a movement no such judgment could have come from the full bench of the apex court. It means that the custodian of the Constitution, the judiciary, needs the people’s support to protect, defend and interpret the Constitution. Without this support, the July 20 verdict could not be such a historic one. If it is so, and as it seems it is so, it is most unfortunate for our country and the constitution as well.

It is here that we enter the third context. What is transpiring now after the judgment and what will transpire in future regarding the judgment? The ethos created by the judgment may appropriately be termed as judicial populism. Under the circumstances, what is more depressing is that we have no inkling of how dangerous and fatal this judicial populism may prove to be. This view is corroborated by the sheer absence of the view that judgments are made in accordance with the provisions of the Constitution. Whoever talks about the July 20 judgment, links it with the lawyers’ movement.

They admit that judges are human beings and are influenced by the circumstances prevailing outside the court. But in the same breath, they declare that they judge according to the relevant laws. They are, in fact, caught in a vicious circle. They have no way out. Why? Because they do not want to acknowledge that their movement was a spontaneous outrage against an outrageous act of a dictator that was deliberately transformed into an organised movement. The focus of their movement was the restoration of the CJ and nothing else. It is evident that it has exhausted itself the moment its goal was achieved.

No doubt, their movement gave rise to slogans of utmost importance such as an independent judiciary, rule of law, supremacy of the constitution, and civilian democratic rule. Have these goals been achieved? Or will they be achieved in the near future? The first step in this direction has already been taken with the restoration of the CJ and undermining of the anti-constitution forces and strengthening of the judiciary. Some of the signs, such as the intimidation of lawyers who disagreed with the mainstream lawyers and advocated the government’s case, now seem to have started maturing. Two recent incidents of intimidation — one of a known journalist Khalil Malik, and the other of a lawyer Naeem Bukhari by the legal fraternity — are symptomatic. This indicates that the lawyers’ movement is deliberately being transformed into judicial populism.

It may be asked why were the lawyers afraid of losing the fight? Why didn’t they trust the court? Why did they resort to agitation? Why even now are they and the representatives of civil society and the intelligentsia justifying the popular support to the court to deliver a popular judgment? The truth in fact is that they did not trust the court. Why so? The history of the court’s judgments in such matters has been disappointing altogether. It seemed as if there was no constitution. The courts were there to cook whatever was needed to be offered to the uniformed guests. With such a background, how can one, and if that one happens to be a lawyer who knows well the track record of the courts, trust the courts?

But that’s not all. The story needs to be retold. The man who inhabits the land of Pakistan has no moral values. He has no integrity of character. He is a man of flesh only. He is not a man of principle. He has no regard for the means. His ends justify his means. He has no conscience. In sum, the quality of man in Pakistan is at its lowest. How can then judges go beyond this state of affairs? It is admitted even today by everyone. Judges, whether retired or not, argue like this. After all judges are human beings. This justifies every act of theirs.

People cannot be blamed for whatever has happened. What is required of a judge is integrity of character. Judicial populism, in many people’s view, destroys whatever little is left of the rule of law in Pakistan. It will destroy supremacy of the Constitution, independence of the judiciary, and turn the society of Pakistan into adventurous warring groups of gangsters. My Lords, so many people like me who believe in the rule of law, need to be convinced that you did not need any popular movement to issue the July 20 verdict.

Note: This article was completed in August 2007.

Media consumption?

The theory of media consumption stands vindicated in Pakistan!

The story goes thus:

On June 29 the Federal Defense Minister, Ahmed Mukhtar, who had been sleeping all through the May 2 Abbottabad-Osama-Bin-Laden and May 23 PNS-Mehran-Karachi happenings, awoke to talk to a group of journalists apprising them that Pakistan had asked Washington to vacate the Shamsi airbase in Balochistan which was used to launch Drone strikes against the militants. The Minister remained awake to tell the Reuters on the following day that Islamabad had been pressing the US to leave the base even before the 'Abbottabad incursion' and did so again after the 'incursion.'

Very next day, the message had already generated its rebuke. The US officials in Washington reacted that there was no plan to vacate the base.

Then it was on July 1 that the Federal Minister for Information, Dr. Firdous Ashiq Awan, had to settle the matter. She while talking to media persons in Lahore declared: "It was just a statement for the media." She clarified that 'she was a member of the defense committee and the matter was not discussed there.'

Is there something such as for the consumption of media? Should there be something such as for the consumption of media? If so, as is the case, what is media for, then? To consume? To consume endlessly? Yeah, it's a voracious consumer, 24 hour consumer. Now, they say it is its freedom what it chooses to consume? But this freedom of it does not work for a 24 hour long day; that means it has to consume sometime or most of the time it has no choice in having it on its table, and it depends on the nature of its appetite and its taste. There the governments find room to bring in the media to consume they want it to consume; though, there are many other ways governments have got to regulate the appetite and taste of the media.

Functionally, media is sort of an information bridge between the rulers and the ruled. But it has come to be a one-way bridge at best, and most of the time. The two-way traffic on this bridge is not allowed and needs media-men like Omar Cheema and Saleem Shahzad, and may cost life. This is this one-way traffic about which the Federal Information Minister alluded when she brushed aside her government's Defense Minister's substantive talk by terming it something which was meant for the media. Why do media need such stuff? Of course, it does not need any such thing (or otherwise), for its own sake, or for its staff, or for its bosses, or for nothing? Obviously, it goes to the citizens of the country with what it picks up from here and there, or is "given" to it by X, Y or Z. After separating wheat from chaff it brings it to its end-users.

However, it is here that it sets itself to consuming chaff, and not wheat. That is what the Information Minister alluded to. The media picked up what the Defense Minister threw or the Information Minister threw and brought it up to its viewers, the citizens, who are ultimate end-users. In other words, what Information Minister dubbed as 'for media consumption' is for the consumption of the viewers, the citizens, finally.

That is what is known as Public Consumption. Also, government has laws and rules such as official secret acts, or classified information; it goes beyond that and conceals its affairs from the citizens, and makes their leaking a crime. In addition to concealing its affairs, government lies as well as misleads the citizens. It contrives incomplete, incorrect and false information which they mean for “public consumption.” In this game, the media serves as a tool of the government. Otherwise, what else the Information Minister's 'for the media consumption' may amount to?

As no one from the media protested over the Information Minister's 'for the media' theory, it meant not only the media is ready to consume such misleading stuff; it is ready to mislead its viewers also. The question is: Is media an accomplice in the Great Crime being committed in Pakistan against its citizens?