PAKISTAN: “US Middle East Policy: Pathways to Renewal:” 

Dear friends,

We wish to share with you the following speech by Mr. Aitzaz Ahsan.

Asian Human Rights Commission
Hong Kong

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A speech by Mr. Aitzaz Ahsan forwarded by the Asian Human Rights Commission

PAKISTAN: “US Middle East Policy: Pathways to Renewal:”

MIDDLE EAST INSTITUTE
SIXTY SECOND ANNUAL CONFERENCE
WASHINGTON D.C.

FOCUS ON PAKISTAN

KEY NOTE ADDRESS
BY
AITZAZ AHSAN
FORMER PRESIDENT SUPREME COURT BAR ASSOCIATION

November 21, 2008*

Madam President, Ladies and Gentlemen.

As a new era of hope and optimism dawns on the horizon of the United States, and indeed the world, I am grateful to the Institute for having honoured me with an award in recognition of my humble services to the people of Pakistan. Over the past few years I and my colleagues have struggled, in a difficult part of the world, for the supremacy of the Constitution, for the reinstitution of democracy and for the re-establishment of an independent judiciary. My own efforts have not been as significant, however, as the Movement that I, and many of my more accomplished colleagues at the Bar, were able to generate during the last 20 months. It is recognized the world over as the “Pakistani Lawyers’ Movement”. I am proud to have played a small role in that great movement.

Although the Pakistani Lawyers’ Movement has shown some unique and fascinating features that can instruct the world, and although I have been especially honoured for my association with it, I will only revert to it later in my submissions when its more salient features are relevant to our discussion today.

Madam President, I congratulate you for this timely and most pertinent moot. It comes at a time when America has, mercifully, opted for change. And it is designed to discuss exactly what that should spell.

Though I will primarily focus on Pakistan, some obvious facts need to be stated about the Middle East. You may initially wonder why I am stating the obvious and the axiomatic. But these facts need to be kept in mind particularly in the context of the Pakistani situation that I will be reverting to.

With the promise of ‘CHANGE’ being in Washington’s air, with this glorious autumn promising to make way ultimately for a uniquely promising spring, it is time to talk of the hard facts that are stark and clear but seem to have been befuddled in the recent past.

Presently it is necessary to note only the following broad features of the Middle East:

• Although by conventional definition the Middle East spans the area from the Mediterranean to Pakistan, I will, submit a pointed caveat to this definition.
• The Middle East also comprises (barring Israel and Lebanon) of states with overwhelming Muslim majorities.
• But while it is overwhelmingly Muslim, it is not entirely Arab.
• Being overwhelmingly Muslim also does not necessarily imply any cohesion or uniformity. While there is inter se diversity and distinctness among the states population of many of its states is itself richly plural and diverse.
• Nor does being ‘overwhelmingly Muslim’ imply that it is a region without internal contradiction and contention. Some of these contradictions have led to intense, and persisting conflict.
• To a world concerned with the War on Terror it is necessary to point out that it is a mistake to equate terror exclusively with the Middle East and with Islam. When the IRA almost blew up an English Prime Minister in a Brighton hotel, that was not linked either to Islam or the Middle East. The ETA bombs, or the blasts in North East India have similarly nothing to do with Islam or the Middle East. The Tamils of Sri Lanka, taking the initiative in suicide bombings, including those that took toll of an Indian Prime Minister and a Sri Lankan President, are neither Muslims nor Middle Eastern. Terror has perhaps more to do with a sense of being occupied and movements that can be categorized as movements of national liberation than any religion or peoples. The people of Northern Ireland, Basque, Palestine, Iraq, Afghanistan, and Tamil areas of Sri Lanka believe they are occupied illegally and have been fighting for national liberation. Remember, too, Lebanese and Palestinian suicide bombers, against Israel’s incursions upon their lands were Muslims as well as Christian.
• Significantly, and although The Middle East is overwhelmingly Muslim, there are only a few states in it with sovereign democratic, and independent judicial, institutions. In states bereft of such institutions there is thus a weak bonding and social contract between the rulers and the ruled.
• Hence in most countries autocracies control the local populations. This control is becoming more and more untenable as winds of change sweep the world and the region.
• But then there are also states in this region with natural and inherent aspirations of effective democratic and independent judicial institutions. These states have entirely different aspirations from the autocracies.
• It is thus also essential to distinguish the Arab from the non-Arab states and the established autocracies from states in which the people have an inherent urge for the institutions of democracy as well as of justice.
• In the latter type of state both the institutions of democracy, Parliament as well as of an independent judiciary need to be fostered and sustained. It may be a fault to take the one for the other. Both must go together and support and strengthen each other.
• Finally, it must be remembered that no democracy can survive without an independent judiciary. Independent judiciary is the oxygen tent for struggling democracies. Demolish the one and you destroy the other as well. That is axiomatic.

What the above attempts to illustrate is that the Middle East region is not a uniform totality. It is a mosaic. There cannot thus be one uniform policy for all of it as one. What may apply effectively to one area or state is not necessarily appropriate and apt for another. What may be valid for Iraq (and one still wonders what US policy has been valid for that country?) is unlikely to be workable in Pakistan.

There is one other broad, though equally obvious, aspect that must be kept in mind while discussing US Middle East policy. The good or bad of this policy depends, without doubt, on the perspective from which you view it. And there are two distinct and opposing perspectives.

One view was the official view articulated in Republican Washington. This is the US view. From this perspective, all actions are taken in the highest interests of the region and its people. The American administration has the most noble of motives even when it intervenes there to defend its own homeland far away. It does so out of an unavoidable necessity and with the use of the minimum force required. The only apt and tell-it-all nomenclature was the official description of the recent attack on Iraq: “Operation Shock and Awe”. Otherwise the US has only been pursuing the interest of the earth’s population, in addition, naturally, to that of its own.

Sometimes the US is able to cobble together a team of local administrators who articulate this same view. That is then considered a most satisfactory outcome even though the US may become widely unpopular amongst the broad masses and the local population, thus making the earth and the United States itself, as well as its citizens abroad, unsafe.

The other opinion of this US policy is the one that is more often maintained by the people of the region, or of the target state itself. This is an entirely different, perhaps an opposite, perspective. From this perspective America is widely perceived as motivated by self-interest alone. That self-interest is not confined to the justified object of securing its mainland against acts of terror and violence. Even if the objective is expressed in these limited ort altruistic terms, the perception and belief in the region is that the US intervenes to secure to itself the wealth of the nations, particularly oil. It is also perceived as the contemporary player of the Great Game denying markets, routes to markets, and access to the resources and energies of its neighbours to any perceived or emerging rival.

The two views are diametrically opposite and irreconcilable.

Policy makers in Washington have believed that if they can induct a local elite, whether democratically elected or not, and get it to invite, accept or condone US intervention, it has done all that is required. That technical expedient having been achieved, by politics or craft, then the world, or at least the subject state, ought to be grateful to it.

Many American policy makers, even the most informed, have passionately believed that this is the solution. They think that once an indigenous elite invites intervention, then intervention, even by bombs and missiles, is legitimate and acceptable. They also believe that in such a situation the local population should be grateful for the bombs raining down from the skies and the drones that fire them. But it may be technically legitimate, perhaps. Yet it may not be acceptable, in reality, to those who suffer it.

This may be an over-simplification, but, in a nutshell, this does appear to have been the foundational belief of US policy makers when, after the tragedy of 9/11 they were crafting and executing their Middle East policy. But this construct may not be altogether valid. I think this is one vital aspect that needs to be highlighted. I think this is one important aspect in which this policy may require change and renewal.

Pakistan is the case in point.

It is, no doubt, in the eye of many a storm. It is an embattled state. But if in fighting, even in winning, some battles, you lose the local population, you will lose the war.

On its western border there is an armed insurgency. This is an insurgency the entire world is affected by and thus deeply interested in resolving.

On Pakistan’s eastern border there is indeed a great and vibrant democracy. The people of Pakistan wish it well. The people of Pakistan want to see it and its people prosper and live in peace. But that democracy continues to spend enormous sums upon its defence quite disproportionate to the needs of its people. This maintains, perhaps by design, a fear psychosis in the Pakistani mind. After all the fear or mistrust of which other state or power impels both of us, India and Pakistan, to spend such vast sums on our defence when we have some of the poorest people, and some of the worst slums, in the world? The history of at least four wars during the last sixty years does not help cure people of this paranoia. India took the lead in crossing the nuclear threshold. It was natural for Pakistan to follow.

Domestically, too, Pakistan is beset with enormous challenges and problems. The economic front has become the most engaging at present. With oil and food prices always spinning unpredictably world-wide, the conditions in the developing states have become precarious. Pakistan is one of them. But Pakistan, at the same time, is engaged in a war on its own territory and, in some measure, against its own people. This is quite a predicament.

It is heartening to note the views expressed by the President and Vice President-elect, Senators Obama and Biden. Both seem to be conscious of the challenges faced by Pakistan. Senator Obama has spoken of the need to devise people-friendly policies. He has even expressed the desire to help get the Kashmir dispute resolved. Senator Biden has co-authored the Biden-Lugar Bill with an emphasis oN aid for civilian uplift. But Washington needs to be informed of some other, equally pressing realities towards which it has so far turned a blind eye.

I now is the time to revert to the Lawyers’ Movement in Pakistan. It is perhaps the only liberal, modernist, utterly non-violent, peaceful, tolerant democratic, plural and hugely popular movement in the history of the entire Islamic world.

On March 9, last year, the Chief Justice of Pakistan refused to submit to the dictat of Army Chief-President General Musharraf and his uniformed colleagues, to resign. The rare show of defiance triggered off an immensely popular movement spearheaded by the lawyers. Initially the Movement weakened the General’s iron grip forcing him to open a dialogue with the martyred leader Benazir Bhutto then living in exile. It is not insignificant that the General had previously sworn that she would never be allowed to return to the country. It is also notable that until the lawyers of Pakistan picked up cudgels with the General there was no one, in Pakistan, to challenge and confront him.

With the General thus tripping and tottering in the face of the unrelenting movement, the US began to stitch up an arrangement between him and martyr Bhutto. But the General began to perform only under the Movement’s pressure. He relinquished the office of Army Chief, allowed the other exiled leader Mr. Nawaz Sharif, (of whom he had similarly sworn and whose return he had earlier obstructed), also to return before the elections, and held elections despite the tragic assassination of Benazir Bhutto.

The verdict of the February election was resounding. The people sacked the General. The prime electoral issue had been Musharraf’s ouster of the Chief Justice. The people had voted on it categorically. Indeed it had arisen in such sharp relief that some people figured that it had even corroded into the immense sympathy wave for the Pakistan Peoples’ Party that would otherwise have swept any election, held so soon after the colossal tragedy, with a two-thirds majority. In the event it emerged as the largest single party in Parliament well short of a simple majority.

Very few doubt that had the elections of February last been held after the elected leadership had reneged from the express, written and publicly declared promises to reinstate the Chief Justice, there would be have been a wash-out. A recent IRRI poll revealed that 83% of the people of Pakistan want the reinstatement of the Chief Justice.

In this context the cause that the lawyers of Pakistan have been fighting for becomes intensely relevant. It would thus be meaningful to understand the relevance of the cause in today’s intractable imbroglio, and to highlight the tragic manner in which the US Administration turned a blind eye towards it.

Let me hasten to add that we have not sought, and will not seek, any direct US intervention on our behalf. But it is of no mean significance that for the five months that the Chief Justice of Pakistan was detained inside the building of his residence in Islamabad, along with his wife and young school-going children including one special child, and for the five months, therefore that the detained children missed school, no one in the US administration, from the highest to the humblest, expressed any concern for their lot and circumstance. Not a syllable was uttered and not a decibel sounded.

I tried to goad the conscience of the administrators by contributing an article, from my own place of detention, to the NEWSWEEK’s issue of February 11, 2008. I concluded the article with the advice:

‘[Chief Justice] Chaudhry’s brave stance soon won him accolades around the world: Harvard Law School gave him its highest award, the Medal of Freedom [previously awarded only to Thurogood Marshall and Nelsen Mandela], and the New York City Bar Association made him a rare honorary member.
‘Yet U.S. officials remain unmoved, despite a letter Chaudhry sent to Western leaders last week protesting his treatment. Blind to the overwhelming support Chaudhry enjoys at home and abroad, Washington continues to pay lip service to the need for an independent judiciary in Pakistan while doing nothing to support one. This strategy is dangerously short-sighted. The United States has every reason to worry about terrorism and instability in Pakistan But ….. [i]f we lock up our judges and subvert the legal process, then those who believe in a more brutal kind of justice will triumph. It’s therefore high time to take a stand, From now on no dignitary should visit the president on the hill without making it a point to inquire about the prisoner on the hill nearby. Due process and democratic principles demand nothing less.’

[Italics added].

But Washington did not heed. Only Senator Russ Fiengold and Congressman John Tierney seemed to understand the significance of the suggestion. They visited the Chief Justice at his residence where he had been detained. Congressman Tierney called on the Chief Justice with his delegation of congresspersons and staff. They thus endeared themselves to the people of Pakistan. But these gallant gestures by the Senator and the Congresspersons flew in the face of the administration’s studied neglect of the issue.

As the people of Pakistan and the lawyers in America agitated, the administration of a country with oft-expressed commitment to human rights, maintained a telling silence on the ouster and detention of none other than the Chief Justice of a country. Several other judges were also similarly detained but it seems that the US administration took Pakistan to be one of the natural autocracies of the Middle East I referred to earlier. That it is not.

This is the perspective of Pakistan in which the US policy has consistently been wrong.

The following realities must, it is suggested, always be borne in mind in the light of what has been stated above:

One: and to revert to the categorization I had done earlier, Pakistan is actually not a Middle Eastern state at all. It is a South Asian state. Along with the other people of South Asia, most notably India and Sri Lanka, it shares a deep and indelible aspiration for an independent and utterly autonomous judiciary.

Pakistan is no doubt a Muslim state. But it is neither Middle Eastern, nor Arab. It is not a Middle Eastern Arab State. It is, and must be seen and recognized as a South Asian Muslim state. It effectively belongs to the Anglo-Saxon legal tradition and family.

Make no mistake: an independent justice system remains an integral part of the ideal pursued by the people of Pakistan. Independent judiciaries do not exist in the Arab world. Pakistan cannot do without one. Any one who perceives Pakistan as an exclusively Middle Eastern or Arab Muslim state underestimates the commitment of Pakistanis to an independent judiciary. He also underestimates, thereby, the Pakistanis’ yearning for, and admiration of, fearless and independent judges: Cornelius, Kayani and Hamood-ur-Rahman in the past, and Chief Justice Iftikhar Mohammad Chaudhry today.

The issue of the restoration of all the independent judges is so close to the peoples’ heart that no one can even articulate any opposition to it, not even those who in fact obstruct the reinstatement. In fact President Zardari himself thrice signed, and publicly committed to Declarations promising to reinstate them unconditionally and without the expedient of any new oath or any constitutional amendment. The Lawyers’ Movement continues only because the promise made through signed and publicly declared assurances, has not been kept. Therefore the issue of an independent judiciary continues to distract attention even from Pakistan’s efforts in the War on Terror.

Two: the issue is all the more important because it has arisen in a war zone. That is the most important aspect. People may not be ready to believe it, but the existence of an independent and functioning judiciary is quite crucial to the prosecution of a war. Britain’s war-time Prime Minister, Sir Winston Churchill, is said to have been of the firm view that if her courts were independent and functioning, Britain could not lose the war. The implication is evident. Without an independent judiciary a contestant cannot win a war.

What must be realized, and realized soon, is that the most effective weapon in a war is a population with enforceable rights. The population I refer to is the population in the war-zone.

The apparent induction of a democratic structure will perhaps take your eye off the ball that is the judiciary. That will be a costly lapse precisely because Pakistan is in the war zone. And America’s erstwhile most friendly friend, its most trusted associate and, in the words of a senior State Department official, its “indispensable ally”, General Pervez Musharraf hacked and pulverized the justice system to the ground and pulled it out of its foundations. On November 3, 2007 he suspended the constitution and arrested and detained as many as 42 judges of the superior courts, dismissing even more. This had the effect, not merely of depriving the honourable judges of their exalted offices but in fact, the entire citizenry of its rights.

The Constitution of Pakistan which the General purported to suspend, amend and restore, does, no doubt, provide for an entire set of fundamental rights. And it provides, on paper now, the means of their enforcement through what, in effect, are the writs of habeas corpus, certiorari, mandamus and prohibition. But where is the machinery for the enforcement of the rights? That has been trampled and decimated.

When a majority of the judges of the superior courts, were purportedly dismissed and actually, and physically, arrested and detained with their family members including their children on November 3 last, General Musharraf delivered a fatal blow to an independent and functioning judiciary in the war zone. Even if Parliament were to attempt to condone that action it would wipe out the chance of any judge in Pakistan ever becoming independent for all times to come.

Operation Enduring Freedom’s 7-year alliance with a Pakistani autocracy, civilian and military, has taken both Pakistan and America’s ‘War on Terror’ no where. And if you are going nowhere any road shall take you there. Brigadier Mark Carleton-Smith, Britain’s most senior commander in Afghanistan, has now said that the war cannot be won.

The truth is that no modern war can be won in lands that lack justice. Lands that lack justice produce economic and social inequities. And, lands submerged deep into economic and social injustices churn out disaffected elements that, in Pakistan’s case, are now getting sucked into the war on terror; getting sucked in favor of terror, not justice.

Operation Enduring Freedom’s 7-year alliance with a Pakistani dictator has Pakistan bleeding, Afghanistan hemorrhaging and the corridors of power in Washington, London and Brussels all confused like they have never been in a hundred years. Only justice for all can beat terrorism. Only an independent judiciary can checkmate extremism. Rule of law is the most effective obstacle to repression, oppression and all their offshoots. Independent judges more than any other element of state are the surest, and the sole, guarantee against terror and the acceptance of its practitioners.

Independence of the judiciary does not derive merely from constitutional provisions purporting to guarantee it. A judiciary is independent when its judges are fearless and independent. This is an on-the-ground situation. It is not merely, and esoterically, conceptual.

Which judge, I ask you ladies and gentlemen, will dare be independent if he has before him the horrible example that the General made of the Chief Justice and other judges? Each would fear not only for himself but for his wife and children, too. And as Bacon said, in times when one was not accused of male chauvinism: “He who has wife and children, gives hostages to fortune.”

Without an independent justice system, the people are deprived of the enforcement of their rights. That, in effect, is a negation of all rights. And a people deprived of rights, are, a people that become alienated from him who deprives them of the rights and those who support him.

Without an independent judiciary, therefore, people gradually lose their commitment to the Constitutional system provided by the state, be it dictatorial or democratic. More gradually they become indifferent to its survival. In the course of time they become apathetic, cynical and resigned. A system that will not enforce their rights alienates the people. They then choose to follow those who challenge it, even those who oppose it with military force. People turn away from a system that is incapable of imparting justice and embrace the rough, ready and brutal justice system of the Taliban. Thus are crucial battles lost. Thus are crucial battles being lost.

The US administration takes pride in advancing the cause of democracy in Pakistan. We do not accept this claim. It is well known that before the lawyers began to march, there was no challenge to General Musharraf. Before the Chief Justice refused to resign on demand, no one had said no to the General. A dictator, weakened by the Denial and the Movement, turned to Washington. That is when the US did some stitch-work and pitched in with the demand for elections. But in the process its ally had destroyed the judicial edifice.

Elections were, no doubt held on February 18 this year. But the dismissed and detained Chief Justice, who was independent minded, modernist and fearless, has not been reinstated. He is devout but a fierce opponent of extremism. He alone had the courage to suspend the operation of the HISBA Act promulgated by a fundamentalist regime in the NWFP. He has shown zero tolerance for corruption, human rights abuse and environmental degradation. He is a natural ally of modernism and civil society.

However, neither a most vigorous movement, nor a massive Long March to Islamabad have been able to persuade the leadership in the new Parliament to restore him and his independent-minded colleagues. Neither was also able to convince Washington of the disastrous consequences of its policies. We hope that will CHANGE.

Three: Pakistan’s Parliamentarians also need to realise that, in history, no democracy has survived without an independent judiciary. No strong and stable Parliament can be constructed on the debris or ruins of an independent judicial edifice. The South Asian experience, in fact is that an independent judiciary is the most significant protection available to Parliament. It covers the flanks of electoral institutions by resisting assaults from all adventurers waiting in the wings.

The entire argument that Parliament must prevail over justice and law is flawed. Please mark my words, and let be this a part of the record, that the advice, often given to decision-makers in Washington, that we should let Parliament settle matters, even when Parliament refuses to undo the outrageously illegal actions of November 3, is grievously misconceived. No democracy will survive without rule of law and due process. Without an independent justice system even the best democratic system remains in jeopardy and eventually degrades into lawlessness and anarchy.

We want to see a truly sovereign and decisive Parliament. But that is not possible without a fearless and independent judiciary. There is no ENDURING FREEDOM without a fearless and independent judiciary. And there is no CHANGE without it either.

Thus our movement continues despite the constitution of a new Parliament. Thus we continue to bear pressure upon those who govern, this time those who inhabit Parliament. Our pressure is entirely non-violent as was established by the Long March in June. Millions welcomed the marchers as they drove through villages, towns and cities. They showered flower petals and provided them with water and food items. Hundreds of thousands came along in the last lap to the capital and assembled outside Parliament. That was on the seventh day of travel through the length and breadth of the country. The sun was rising over the Margalla hills as I began the speech that would conclude the peaceful non-violent protest march. It had risen by the time I concluded.

Four: the Lawyers’ Movement in Pakistan is, as submitted, entirely non-violent and peaceful. The lawyers carry with them no weapon except the precepts of our Constitution. Their weapons are none more lethal than habeas corpus, certiorari, mandamus and prohibition. All the Bar Associations in Pakistan are structured on the principles of democracy, tolerance of diversity, peaceful means and pluralism. They are neither militants nor fanatics. They are supported by a vigorous and vibrant civil society.

I revert to the Long March of June again as there is much to learn from it. I mentioned that it was non-violent. It was also an example of pluralism, tolerance and co-existence in a society ripped apart by schisms and violent contradictions.

The Long March last June was indeed the signature of the Movement. It epitomized it with great accuracy. Stretched over seven of the hottest days and over the entire length and breadth of the country, it spanned the complete spectrum of the population. Men, women, children, old and young, students and lumpen, professionals and high executives, farmers and urbanites, poets and writers, artistes and sportsmen, the nameless and celebrities, all pitched together.

Those that could converge upon the capital traveled for several days, braving the summer heat and the powdery dry dust, to come to the final destination: the Parade Ground in front of Parliament in Islamabad. Those that could not travel showered flower petals, offered food and drinks and cheered the marchers as they passed through the hamlets, villages, towns and cities. At the Parade Ground young mothers in jeans, with babies under their arms, stood by those in hijab. Young students rubbed shoulders, with due deference, with old men with white beards. The freethinking mixed with the devout. Muslims of all sects embraced Christians and Hindus in their midst. Flags of every hue and colour, representing different political parties, factions and ideologies fluttered in the light breeze passing over the Parade Ground. There was no tension or intolerance.

The Pakistani Long March, spearheaded by the lawyers, was an example of peaceful co-existence, harmony, decency and rectitude. There was immense emotion but no violence, no conflict. Not a leaf was plucked. Not a glass pane was broken. This was the real Pakistan that we do not want to hand over to intoerant obscurantists.

But the Government does not seem to have leant an ear to the protest. So we will march on. Failing to get the independent judges reinstated we may have to resort to another such event in the coming months. And let all friends of Pakistan including the United States hear it loud and clear: there will be no closure of the dispute, and no stable administration, until the independent Chief Justice returns to his office.

Five: there is of course another aspect in which an independent judiciary is imperative in the fight against terror in Pakistan. Most of the Pakistani elements in the industry of terror are unemployed youth. Pakistan faces enormous economic challenges. Inflation in the prices of essential items and rampant unemployment are the two most stark and dark realities. Pakistan is cash and capital starved. It cannot come out of this bind and then develop on the basis of aid and dole alone. It needs to attract big investors and massive investment.

One essential pre-condition for investment is security of capital. Seldom will one invest in an economy in which one’s investment is not secure. And investors fear to tread on territories where the judiciary is not independent. An independent judiciary is premised, as submitted earlier, on fearless and independent-minded judges. You cannot people a system of courts with timorous and timid souls and expect investors to rush in with their capital.

There are indeed a few countries, only a few like labour cheap China or oil-rich Saudi Arabia, that have attracted capital despite having a low coetient of rule of law and a high one of state arbitrariness. But their conditions are unique. Pakistan is different. As submitted it is a South Asian country. And a cash-strapped Pakistan cannot afford that high cost of capital inflow that China or Saudi Arabia can afford.

Let it be said again. I appreciate the Biden-Lugar Bill. It is a great step in the right direction. But states do not develop and prosper on dole and aid alone. A state only develops when the intenartional investor takes a giant leap towards it. That is when it can win wars. That is when it can win against terror.

New Delhi, a mere 425 miles from Islamabad, managed to retain the soul of British India’s judicial system. Just look at the result: On April 26, India joined the elite club of twelve countries with a trillion-dollar economy. Pakistan remains a under $150 billion dollar economy. Economic history dictates that economic growth is strongly correlated to judicial independence because:

• Investors always prefer markets where they can minimize risks as well as transaction costs;
• Investors always prefer countries where they can rely on rules of law;
• Investors invest in markets where rules can be enforced;
• Investors expand investments in countries where judicial decision making is predictable;
• Investors stay in markets where contractual obligations are enforced;
• An impartial judiciary reduces instability;
• Independent judiciary leads to more developed credit markets;
• Investors invest where a bold judiciary can uphold property rights;
• Investors invest where there are judicial checks to government power;

Pakistan is flirting with financial bankruptcy. This financial bankruptcy is clearly the consequence of lawlessness, chaos, confusion and disorder. Samuel Huntington claims that civilizations are clashing. The controversial Wafa Sultan insists that civilizations don’t clash they compete. In this I agree with Sultan, not Huntington. Civilizations aren’t clashing. Two world views that are clashing. In Pakistan, Pakistanis who dream of an independent judiciary and rule of law are clashing with a small minority that is adamant on maintaining the status quo; lawlessness, chaos, confusion and disorder.

Yet, I would give up on the independent Pakistani judges if Pakistan, and the world, would be better off without them. As America’s great President, Abraham Lincoln whose memory is evoked every time one thinks of the enormous change heralded on November 4, said of the Union (in a Letter to Horace Greeley, August 22, 1862):

“My paramount object in this struggle is to save the Union, and is not either to save or to destroy slavery. If I could save the Union without freeing any slave I would do it, and if I could save it by freeing all the slaves I would do it; and if I could save it by freeing some and leaving others alone I would also do that. What I do about slavery, and the colored race, I do because I believe it helps to save the Union; and what I forbear, I forbear because I do not believe it would help to save the Union. I shall do less whenever I shall believe what I am doing hurts the cause, and I shall do more whenever I shall believe doing more will help the cause.”

What America must realize, and it has not done so far, is that when we fight for the re-establishment of an independent judiciary we do not only fight for our children and ourselves. That we do indeed. But we also represent the values of justice, fairplay, rule of law and due process that must serve the world, and that are so important towards winning the hearts and minds of the populace in the theatre of war.

Ironically, the US is today spending so much effort and resources trying to set up institutions of civil society and social justice in Iraq. Specialist consulting firms have been engaged to draft and codify laws; to train academics to impart legal education; to select, train and induct judges and lawyers; to prescribe procedures and practices; in short, to set up, from scratch, a curial and judicial system. Yet it is a functioning judicial system, based on the norms of independence and due process that the US itself helped destroy, or at least stood by as it was destroyed, in Pakistan. If ‘change’ indeed be the symbol of the incoming administration, we hope that it will bring about a profound change in this policy.

Any political system in a war zone must guarantee to its people ‘enforceable rights’. Rights will only be enforced by an independent judiciary. And independent judiciary, in turn, can only be ensured if there are the judges are independent and fearless. Turning a blind eye to this crucial issue will leave Pakistan unstable and internally divided.

The outgoing administration turned a blind eye to the rape of the judiciary to Pakistan’s peril and that of the world. It would be disastrous for all for the incoming establishment to continue to follow those ill-fated policies. Remember, a Parliament without an independent judiciary is just an empty egg-shell. It is brittle and fragile. It is mere form that deceives no one.

Henceforth let everything be contingent upon an independent judiciary and independent judges. That is the only road out of the present crisis. Every other road is a road to disaster and doom, for Pakistan and the world.

Mercifully, however, every one in America has not turned a blind eye towards our Movement of justice and rights. We deeply appreciate the concern shown by the American lawyers towards their fellow professionals. Recently the American Bar Association itself honoured the brave lawyers and judges of Pakistan. American lawyers also marched on the streets wearing jet black suits to identify themselves with the ‘black coats’ of Pakistan. We also appreciate the role of the American academia, independent intellectuals, think tanks and institutes such as the Middle East Institute as well as of the American civil society and the Pakistani Americans. This is not intervention. This is concern. We welcome it and are grateful for it.

Let me finally reiterate that ours is a non-violent movement and we carry no weapons except the precepts of the constitution and the principles of due process and rule of law. Ours is a plural movement in which all faiths, all sects, all creeds, all colours, and all ethnicities converge. We are a democratic movement electing new leaders every year. Ours is a movement that seeks to bring peace in a region torn by war. Ours is a movement that seeks to create a culture of tolerance and co-existence in a society being ripped apart by intolerance and conflict. Ours is a movement that seeks the reinstatement of the independent and fearless Chief Justice and judges who were ousted by a military dictator and who have been prevented from functioning by a Parliament not prepared to deliver on its mandate or its promise.

In all these aspects it is a movement unique in the entire Islamic World. It embodies everything that the future should be: peaceful, harmonious, plural, non-violent, popular, tolerant and democratic.

We need the understanding, concern and support of all the concerned citizens and intellectuals of the world.

Thank you Madam President, ladies and gentlemen.

(Mr. Aitzaz Ahsan was awarded the Human Rights Defenders Award by the Asian Human Rights Commission in May, 2008)

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* Highlighted text to be read at the Conference. The entire text nevertheless submitted for MEI’s record and publication.

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