This Keynote Address was delivered by Aitzaz Ahsan at the 62nd Annual Conference in November, 2008.
Michael Ryan: Good morning and welcome. I would like to thank you for coming and joining us here on this great occasion. We saw many of you last night as well. Those of you who saw me last night already know that I am not Wendy Chamberlin, but for those of you who were not here last night: I am not Wendy Chamberlin. But I am going to explain to you how to read this book, which I did last night as well. Perhaps the most important thing is our mission on the inside of the cover. The next important thing is that every place you see Wendy Chamberlin’s name in this book, you can put “Michael Ryan” – that would be me. I am the vice-president but as of a couple days ago acting president of MEI, because Wendy has been given the great honor of being asked to be an advisor to President-elect Obama’s transition team. As such, by long tradition as we all know, she is under an agreement not to speak in public and not to take on her ordinary – she has volunteered to do this for the team. I have the great honor to substitute.
I was trying to think, and I think I got the message last night, the only way I can really get your sympathy is by being brief, so I will try to do that. But I will say a couple of things. First of all, if you have not discovered the room next door, down the hall, there are many, many things. You may have come here because you admire our language programs, and our language programs are represented there if you want to sign up. You may have come here because you admire our Journal, and you can subscribe to the Journal in that room. You can do almost anything. The Library is there selling some books. We are also selling books of our speakers today. You may have come here because of events like this one – thank you so much – or you may have come here because you like to take part in the cultural events of the Sultan Qaboos Center. They are represented there as well. So in the breaks, during lunch, we have allowed lots of time to go to that room.
The other thing I would be remiss if I did not mention to you is that there is a little card that says Middle East Institute on the back. If you have not come here because you admire any of those things but you are just trying us out and would like to join, put a check in here, sign it up, give it to me or one of the wonderful interns. We will take care of it and we will welcome you.
I would like to give a warm thank you to our corporate sponsors, to our donors, to our members, to the embassies from the region and some from Europe as well – our friends who made this event possible by their support. You can see their names and their logos on the screen. You can see them here. I will not mention them all – that is part of my trying to get sympathy at least from you – but we do thank them warmly for their wonderful contributions.
I would also like to point out one logistical thing, as we get to the reason that you are really here, which is to hear our first speaker, Aitzaz Ahsan, who we awarded a special award in recognition of his lifelong work in Pakistan defending the rule of law. I would like to ask you to look for the cards in your packet and if you have a question to give to Mr. Ahsan, send it to the end of the row. Our interns will pick it up and bring it forward so he can answer it. We find that this is a more orderly way to do it.
I thought it would be more appropriate today to mention a couple more things. One thing I failed to mention was that I wanted to give a warm welcome to our newest friend, the Middle East Institute of Pittsburgh, who joined us last night and is here today. They opened in September and we have had lots of work with them and we wish them very well.
Now to the matter at hand. Rather than my telling you of the wondrous achievements of Aitzaz Ahsan, I was going to ask his friend Dr. Marvin Weinbaum to make the introduction. Marvin is a resident scholar at the Middle East Institute, as I think all of you know. He is much sought after for his wide-ranging knowledge of the Middle East and South Asia, especially Pakistan, Afghanistan and Iran. He served as an expert on those countries at the Department of State before coming to MEI. Previously Marvin served as director of the Program in South Asian and Middle Eastern Studies at the University of Illinois, where he is now considered amazingly a professor emeritus – I think that must be wrong, but professor emeritus. Too young, Marvin. Of course Marvin has shared his expertise with all of us through his many articles, books and opinion pieces. It gives me great pleasure to ask Marvin to come forward and introduce his friend. Thank you very much.
Marvin Weinbaum: Yes, it is a distinct pleasure this morning to have the opportunity to introduce to you Aitzaz Ahsan. I met Aitzaz some eleven years ago. It was not because he had been before that minister in three cabinet positions, including law minister and minister of interior, or that he had been one of the founding members of the main human rights organization in Pakistan. It was because – you heard about the University of Illinois – Aitzaz and his wife had come to the University of Illinois because he was an author, a scholar. He had recently then published a book called “The Indus Saga,” an interesting book which I might mention is still being reprinted to this day, a book about the pre-Islamic identity of the people of this region, the region which became the state of Pakistan some sixty years ago.
In subsequent years I had additional opportunity to meet Aitzaz but those years were rather tumultuous. You could not possibly have not seen his name somewhere. Just two years after we met we saw the military take over in Pakistan and Aitzaz was a leading voice at that point, speaking in the courts, speaking from his position after 2002 in the Senate as a leader of the Pakistan People’s Party under Benazir Bhutto, speaking out against military dictatorship and in favor of a restoration of democracy. But he was not just a partisan. His commitment to the rule of law, to individual rights, was demonstrated in the fact that when the opposition leader Nawaz Sharif needed a lawyer to affirm his rights, who did he go to? None other than the country’s leading constitutional lawyer, Aitzaz Ahsan.
Aitzaz continued in this position until the point where another man needed a lawyer. It was a year ago March when Iftikhar Chowdhury had been effectively removed from the Supreme Court, the chief justice of the Supreme Court had been removed. Again it was Aitzaz Ahsan who came there as his lawyer. But it was more than that because Aitzaz then has responsibility in subsequent weeks and months to lead the lawyers’ movement, one of the bright lights in civil society in Pakistan, and continues in that role today.
But in November of last year it seemed like it might all come crashing down. A state of emergency was declared. We met in your study in Islamabad just a couple days before, you had just been elected as the president of the Supreme Court Association. Musharraf ran his candidate and I don’t remember the figures but it was about 100 to 1 as the ratio. It was a great embarrassment for the president. But just a few days later Aitzaz was under house arrest, and he has been under house arrest under every military regime that Pakistan has had. One would think he was vindicated fully by the events of February of this year, when the people of Pakistan had an opportunity to go to the polls and express themselves and this was the restoration of a democratic system.
I want to conclude by saying that as you will find out I am sure in Aitzaz’s remarks today, he considers that the struggle continues. Democracy is not yet what it should be in Pakistan and I am sure you will hear more about that. If Pakistan had a political culture of achievement I am sure here this morning I would have the opportunity not to introduce him as the former president of Pakistan’s Supreme Court Association but that in an achievement culture – I think and many others believe too – I would be introducing him as the president of the state of Pakistan.
Aitzaz Ahsan: Thank you, Marvin. But like Wendy is not presiding over this meeting, I am not the president of Pakistan myself. But my paper did begin with “Madame President, ladies and gentlemen.” I have of course to amend that after the good news we have had about the president of the Middle East Institute.
Last night I hope I have not set a precedent for being brief. I hope you do not expect me to be as brief as I was last night. Mercifully after last night’s great applause for my brevity and the warmth shown by everybody for that, I sat down again on my computer last night with my paper. I was just telling Marvin that there is an asterisk to it which I put in and it says: the highlighted text to be read at the conference; the entire text nevertheless submitted for the Middle East Institute’s record and publication. So basically I am going to go through but at the same time I have sliced several portions off it. It may seem a little disjointed because of that but to keep within the time allowed to me I have tried to work that out.
It is about really the unfinished agenda of democracy in Pakistan. Mr. President, ladies and gentlemen, as a new era of hope and optimism dawns on the horizon of the United States and indeed the entire world, I am grateful to the Institute for having honored 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 restitution of democracy and for the reestablishment 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 twenty 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.
Mr. President, I congratulate you for this timely and most pertinent note. It comes at a time when America has mercifully opted for change and it is designed to discuss exactly what that should spell. With the promise of change 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. To a world concerned with the war on terror, first of all, 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 northeast 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 whole toll includes 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, Basques, Palestine, Iraq, Afghanistan and Tamil areas of Sri Lanka believe they are occupied illegally and have been fighting for national liberation. Remember too that the Lebanese and Palestinian suicide bombers against Israel’s incursions upon their lands have been Muslims as well as Christians.
Policymakers 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 policymakers, 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 sky and the drones that fire them. But while this may be technically legitimate perhaps, it may not be acceptable in reality to those who suffer it.
I think this is one vital aspect that needs to be highlighted. I think this is one important aspect in which the policy may require change and renewal. Pakistan is a case in point. It is no doubt in the eye of many a storm. It is an embattled state but if in fighting, even winning, some battles you lose the local population, you will lose the war.
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 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 toward which it has so far turned a blind eye.
I now 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 diktat of the army chief-cum-president General Musharraf and his uniformed colleagues to resign. The rare show of defiance triggered 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 General Musharraf 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 who challenged and confronted him. With the General tripping and tottering in the face of the unrelenting movement, the US began to stitch up an arrangement between him and the 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 Nawaz Sharif – 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 elections was resounding. The people sacked the General. The prime electoral issue had been Musharraf’s ouster of the chief justice.
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 children were not able to go to 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, not a decibel was sounded. I tried to goad the conscience of the administrators, contributing an article from my own place of detention to Newsweek’s issue of February 11, 2008. I suggested, “This tragedy is dangerously short-sighted. The United States has every reason to worry about terrorism and instability in Pakistan but if we lock up our judges and subvert the legal process, then those who believe in a more brutal kind of justice will triumph. It is therefore 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.”
But Washington did not heed. Only Senator Russ Feingold 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. This is the perspective of Pakistan in which the US policy has consistently been wrong in recent years. The following realities must, it is suggested, always be borne in mind in the light of what has been stated.
One, Pakistan is actually not a Middle Eastern state at all. It is a South Asian state. Along with other people of South Asia, notably India and Sri Lanka, it shares a deep and indelible aspiration for an independent and utterly autonomous judiciary. 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.
The issue of the restoration of all the independent judges is so close to the people’s hearts that no one can even articulate any opposition to it, not even those who in fact obstruct the reinstatement. In fact President Zardari himself twice signed and publicly committed to declarations promising to reinstate them unconditionally without the expedient of any new oath or 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. So one, Pakistan is a South Asian state, not a Middle Eastern Arab state.
Two, the issue is all the more important because it has arisen in the war zone. The existence of an independent and functioning judiciary is crucial to the prosecution of a war. Britain’s wartime prime minister, Sir Winston Churchill, is said to have been of the firm view that if 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, Pakistan. The apparent induction of the 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. Operation Enduring Freedom’s seven-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. The rule of law is the most effective obstacle to repression, oppression and all other 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.
The 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. Without an independent judiciary people gradually lose their commitment to the constitutional system provided by the state, be it dictatorial or democratic. More generally, 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 by 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.
Three, Pakistan’s parliamentarians also need to realize 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. Please mark my words and let this be a part of the record. 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 the 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. There is no change without it either. Thus our movement continues despite the constitution of a new parliament.
Four, the lawyers’ movement in Pakistan is entirely non-violent and peaceful. The lawyers carry with them no weapon except the precepts of our constitution. 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, artists and sportsmen, the nameless and the celebrities, all pitched together. Those that could converge upon the capital travelled 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 to old men with white beards. The free-thinking mixed with the devout. Muslims of all sects embraced Christians and Hindus in their midst. Flags of every hue and color 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 coexistence, 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 intolerant obscurantists.
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 two of the most stark realities. Pakistan is cash and capital-strapped. It cannot come out of this bind and then develop on the basis of aid alone. It needs to attract investors, big investors and massive investment.
One essential precondition for investment is security of capital. Seldom will one invest in an economy in which one’s investment is not secure. Investors fear to tread on territories where the judiciary is not independent. An independent judiciary is premised, as submitted earlier, on fearless and independent 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 – like labor-cheap China or oil-rich Saudi Arabia – that have attracted capital despite having a low quotient 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-starved Pakistan cannot afford the 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 international investor takes a giant leap towards it. That is when it can win wars. That is when it can fight against terror.
Samuel Huntington claims that civilizations are clashing. The controversial Wafa Sultan insists that civilizations do not clash, they compete. In this I agree with Sultan, not Huntington. Civilizations are not clashing. Two worldviews are clashing. In Pakistan, Pakistanis who dream of an independent judiciary and the 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, 2008, said of the Union in a letter to Horace Greeley, “My paramount object in this struggle is to save the Union and is not either to save or 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 that. 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 that what I am doing hurts the cause and I shall do more when I shall believe doing more will help the cause.”
What America must realize, and it has not done so far, is when we fight for the reestablishment 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, fair play, rule of law and due process that must serve the world and that are so important toward winning the hearts and minds of the populace in the theater of war. Ironically the United States 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 judicial system. Yet it is a functioning process, 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. Turning a blind eye to this crucial issue will leave Pakistan unstable and internally divided.
Let me finally reiterate that ours is a non-violent movement and we carry no weapon except the precepts of the constitution and the principles of due process, rule of law, habeas corpus, mandamus and prohibition. Ours is a plural movement in which all faiths, all sects, all creeds, all colors 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 coexistence in a society being ripped apart by intolerance and conflict. Ours is a movement that seeks the reinstatement of the independent and fearless 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 and concern and support of all the concerned citizens and intellectuals of the world. Thank you, ladies and gentlemen.
Question & Answer:
Marvin Weinbaum: Let me start with one that is perhaps a little bit outside of your remarks today. What can you tell us about Afghanistan and Pakistan and their future relations? This is a subject that is occupying so many of us here.
Aitzaz Ahsan: Afghanistan and Pakistan have had long historic relations, both tense and smooth. They have been tense long before 9/11 happened. They have been very good at times also, even before 9/11 happened. But since the NATO occupation of Afghanistan there is certainly a great complication in the relations between Afghanistan and Pakistan. Pakistan wants to help Afghanistan definitely and respond positively to accusations that Pakistan’s territory is being used and employed for activities of insurgents inside the state of Afghanistan. We have offered in fact to construct a fence, to fence the entire border – it is an inhospitable border. You cannot prevent Mexicans coming into the United States, how can you prevent in such inhospitable terrain people going from one side to the other when they are all linked for centuries together? They have been crossing the Durand Line, so to say.
But Pakistan has taken very positive steps. Eighty thousand troops are committed to the war on terror on the Pakistani side, designed primarily to prevent any incursions into Afghanistan and designed to squash the militancy in Pakistan. But I think the weakness of the Afghan government – I do not want to comment on that particularly. I am not a representative of the government so I cannot comment on it actually. But the weakness of the Afghan government is responsible mainly for the accusations that are targeted at Pakistan. Mr. Karzai can hardly rule Kabul and a few other cities. Everything else is beyond his control and it is easy to find a scapegoat, and the scapegoat is Pakistan.
Marvin Weinbaum: I am going to try to focus on those that involve the judiciary so I won’t get you strung out on general foreign policy issues. Please comment on the potential threat to an independent judiciary based on Anglo-Saxon principles from Islamists demanding implementation of shari’a law in Pakistan.
Aitzaz Ahsan: Pakistan has a happy blend of shari’a law and Anglo-Saxon law. In fact now there is a very serious move in Great Britain to introduce shari’a law in some respects, legislated and introduced through statute, for Muslim citizens of Great Britain. That is a blend which was actually factored in by the British during the period of the Raj, where on personal matters the shari’a would apply; on all other public matters and civil and constitutional rights, the Anglo-Saxon manner of judging and due process would be applicable. There have been tendencies obviously more recently, particularly since General Zia ul-Haq was fighting the Soviets. He started a push toward what was called the Islamization of all laws. He stridently went for Islamization. There was a lot of opposition to that, particularly for instance by women, when the law was going to be changed and women demonstrators prevented it. The law was going to be changed whereby two women would have to give testimony to a fact which could be proved by the testimony of one male. But there was strong resistance and that rule was shed because Pakistan, as I said to you earlier, is a South Asian state. It has to be seen as a South Asian state, like India and Sri Lanka. We have traditions of due process, rule of law and the writs and the supervisory jurisdiction of the courts.
I may just point out in this specific context that in 2003 shari’a was legislated by the fundamentalist government of one particular province, the North-West Frontier Province. It was an MMA government, which is a mullah government (Muttahida Majlis-e-Amal government). They legislated that. There was an outcry but nobody dared strike that law down. It was called the hisbah act, the accountability act – accountability according to Islamic principles. The chief justice, Iftikhar Chowdhury, was the only one who petitioned – he did not do it suo moto but when petitioned – dared to strike it down and to whittle it down greatly. That is the kind of man he is, a progressive liberal – it means something bad and nuanced in America but liberal in the British traditions, which I carry, a progressive modernist man, the chief justice that we have had.
Marvin Weinbaum: How does Pakistan’s independent judiciary plan apply to the rule of law in the North-West Frontier Province and in tribal areas such as Waziristan? Is it directly applicable?
Aitzaz Ahsan: The jurisdiction of the courts does not extend to the Federally Administered Tribal Areas but it does extend to the North-West Frontier Province. The main problem of terror and the war is in the FATA areas, where the jurisdiction of the courts does not extend. There has been a great demand and increasing demand for the extension of the jurisdiction of the established courts, the courts established under the constitution, to the FATA areas. It is what I called the “timid and timorous” judges who shirk from it but independent and fearless judges have been advocating that for a long time, but it will require a constitutional amendment and the judiciary cannot itself extend jurisdiction where the constitution does not allow its jurisdiction to extend to.
Marvin Weinbaum: This may be a bit of an uncomfortable question and if you duck it I will understand. I am sure the audience will as well. How can an independent judiciary function in Pakistan with such a crippled civil society infrastructure and corrupt political process, specifically in light of the current election of President Zardari?
Aitzaz Ahsan: Is the implication that there is a corrupt person who is the president?
Marvin Weinbaum: You draw what assumptions you choose to.
Aitzaz Ahsan: I do not know. I do not get – what the questioner apparently asks is how can an independent judiciary function when there is so much corruption. I don’t know why the link has been made with Mr. Zardari unless of course it is one of the concept of corruption. But an independent judiciary is obviously necessary. The day before yesterday the chief justice of Pakistan received Harvard University’s highest award. He was the seventh person to be awarded the honor of an honorary life membership of the New York Bar Association, the largest bar with the highest corporate practices in the world. He was awarded that on the 17th. On the 19th, the day before yesterday, Chief Justice Iftikhar Chowdhury was awarded by Harvard University its Medal of Freedom. The Medal of Freedom has been granted only twice before; two people have got it before. It is not an annual award, it is not once a decade award. It is only if a person they select, and they select with great care and deep examination. The first two people to receive the award, the first one was then-attorney Thurgood Marshall, who rose later to become a judge of the Supreme Court of America and who was honored for his pleading in the case of Brown v. Board of Education, which we all know was the desegregation case. The second time it was awarded – and Iftikhar Chowdhury, chief justice of Pakistan – there is good news coming from Pakistan too. The second time it was awarded was to Nelson Mandela, and the third recipient the day before yesterday of Harvard’s Medal of Freedom was Iftikhar Chowdhury. He was there to receive it.
Harvard Law School and Harvard University’s awards committee did not just give the medal to him for his five months’ detention with his children and for his saying no. They surely went through, because we sent them 153 judgments contributed and subscribed by the chief justice which showed that he had zero tolerance for corruption. I can name the cases but they will be Latin to you so I leave them out. But the conclusion, zero tolerance for corruption; zero tolerance for environmental degradation; and zero tolerance for human rights abuse. Obviously if we have a judge like him, a chief justice like him, there will be strong controls and oversight on corrupt practices.
Marvin Weinbaum: The last question is, how can the US government best support democratic reform in Pakistan considering its background and history of focusing its assistance on the military of Pakistan?
Aitzaz Ahsan: I think the Americans have frankly first to realize that their undiluted support for military generals like Zia ul-Haq and Musharraf – undiluted, unreserved support, and this is a matter of record – even giving them funds in billions and billions of dollars that were never accounted for. First of all, you must realize that undiluted and even diluted support for the army as against the civilian structure is going to warp the entire structure altogether to the detriment of Pakistan and to the detriment of the world.
Second, what must be realized – I return to this – is that when we talk of democracy, it is not just parliament. The concept and the structure of democracy has at least two major components. It is parliament, yes, a sovereign, supreme parliament, but it has to have also an independent judiciary. Without the one or the other you are not creating, you are not building democracy in Pakistan. You are not helping build democracy in Pakistan. And if you do not have democracy, you will not be able to fight the war on terror. But remember democracy is not just pure, simple, mere parliament. Democracy is these two stable majestic structures – parliament and an independent judiciary. No parliament has survived where there has been no independent judiciary.
I think the Americans – since this is a question asked of me I do not want to arrogate to myself the authority or the position to be advising you or lecturing down upon you, but since it was a specific question I think my answer to that would be that the Americans, the administration, must realize number one, the civilians are more important than military men. Number two, no question of there being a stable and long-lasting, sustainable democratic structure without both a sovereign parliament and an independent judiciary. You cannot take your eye off the ball of the judiciary by being bedazzled by a parliament.
Marvin Weinbaum: Aitzaz, here in the United States we would probably add a third leg to that democratic stool, and that is a free media.
Aitzaz Ahsan: Oh yes, of course. Granted.
Marvin Weinbaum: I am sure that is equally applicable and we know it is to Pakistan.
Aitzaz Ahsan: Granted, I stand corrected. I add that.
Marvin Weinbaum: And we stand enlightened by your remarks today. Thank you so much.