Osama Siddique LL.M. ’97, associate professor in the department of Law and Policy at Lahore University of Management Studies in Pakistan, was on the Harvard Law School campus last week to speak about the public reaction and the historical context of the state of emergency in Pakistan. While he was here, he agreed to answer some questions about the political situation.
In your talk here at HLS, you refused to call the situation in Pakistan a state of emergency, but instead called it a state of martial law. Why?
Ousted Chief Justice Iftikhar Chaudhry
Under the Pakistani constitution, you can have a constitutional emergency, but it’s very different [than what’s in place now]. It is supposed to be for a much shorter duration; it is supposed to be only imposed in a small, distinct portion of the country; the fundamental rights you can actually put on hold are lesser; it is always judicially reviewable; the provincial legislature carries on functioning; and it is supposed to come up before the parliament for ratification. In this case, you have a complete and drastic imposition of emergency and suspension of rights over the entire country. We don’t even know if it’s going to be put up before the assembly. Judges, of course, have been ousted, and courts have been precluded from questioning this entire action. It cannot be assailed at any forum, and it’s much more draconian in terms of suspension of rights. That’s why it’s a martial law. They try to soft-peddle it for obvious reasons, but it is a martial law.
You characterized this particular state of emergency as being focused solely on the judiciary. Why did Pervez Musharraf issue so many complaints against the judiciary?
Like any other jurisdiction, the courts have the power of judicial review to examine legislative and executive action. They are the final interpreters of the constitution and the ultimate custodian of the rights under the constitution. The main threat to Musharraf was going to come from the judiciary, not only constitutionally, but also given the more recent events politically. The judiciary has questioned Musharraf’s perpetuation of his position and the constitutionality of his holding two offices -- that of chief of the army and as president. His actions are very much directed towards neutralizing the judiciary from doing anything.
The judiciary has come to stand as a symbol of resistance against a tradition of authoritative rule, especially because this particular chief justice took a stand against Musharraf and gained public support.
Last week, Musharraf said he would lift the emergency on December 16. Does this, in addition to the fact that he has stepped out his dual role of military leader and president, imply that he is losing the battle and that the resistance movements are winning?
In some ways, these are not insignificant victories. There has been so much domestic opposition, even though it has not been that visible in terms of mass public rallies. His popularity has really decreased. That and the international condemnation both from political governments, but even more importantly from academic institutions, civil society, and human rights organizations from around the world, has in some ways gotten us these concessions earlier than what I expected. His stepping out of the uniform is extremely significant, because his real power constituency was with the army. And now that he’s actually pulled back the date of lifting the emergency from January 16 is another step. But the key question is going to be the restoration of the judiciary.
You said holding elections under emergency was not a good way to hold free and fair elections. Now that Musharraf has set an earlier date for lifting the emergency and established a date for the elections in January, what do you think the outcome of the elections is going to be?
We’ll have to see what exactly the lifting of the emergency means. Does it mean that the various restrictive laws that he introduced are going to be retracted? Is the judiciary going to be back? Is the media going to be free? Unless these things happen, the emergency won’t really be lifted. That’s really want you want at the time of elections because those are the mechanisms that provide accountability for the entire process. Otherwise, a very entrenched state is going to use the state machinery to influence the election results. The other important thing is that unless these things happen, it is not very likely that all the political parties may actually participate in the elections. If certain key political parties boycott the election, that also casts a shadow over the entire process.
You talked about some specific provisions in the Pakistani constitution whereby the president can oust other officials very easily. Do you think there will be any traction for changes to the constitution to try to prevent this kind of situation from happening again?
Historically, this provision was introduced around 1985. It’s called the 8th Amendment and a component of this constitutional amendment gives extraordinary powers to the president to absolve the assemblies. It was used highly controversially four times within a period of eight years -- between 1988 and 1996. Any analysis of that period shows that this is a very problematic provision. It empowers the president too much, and it puts a tremendous amount of pressure on the judges because they are forced to adjudicate highly political cases, which polarizes them.
The key question is going to be if Musharraf stays on as president and if Nawaz Sharif or Benazir Bhutto is elected, how will they coexist? We may see something similar to the previous governments in the late 1980’s and throughout the 1990’s, where the prime minister had a problematic relationship with the president, leading to further instability and at times completely uncalled for dissolution of the assemblies. In the 1990’s, the political parties did get together, and they repealed this particular provision. Then, Musharraf brought it back after the coup. So it’s a constant tussle.
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