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Protecting the Dike that Safeguards the Rule of Law

The Asian Human Rights Commission wishes to present the speech given by Mr. John J. Clancey, Chairperson of the Asian Human Rights Commission at the Awards Ceremony for the Asian Human Rights Defender Award 2008.

Mr. John J. Clancey, the chairperson of the AHRC made the presentation speech on behalf of the AHRC and detailed the contribution of the lawyer’s movement of Pakistan to the cause of the rule of the law and the independence of the judiciary. He highlighted the importance of this movement and the courageous role played by about 3,000 lawyers who faced detention and the 60 judges who were dismissed from their positions. He also highlighted the important role played by the leading lawyers such as the two gentlemen who were honoured on this occasion who lead a whole generation of younger lawyers that went into the streets to defend the rule of law and the independence of the judiciary.

We reproduce below the text of the Chairperson’s speech (Kindly see the text of the acceptance speech by Mr. Muneer Malik at:

When I was a young boy we were told a story about a brave young boy in Holland.  Upon seeing a hole in a dike, this young boy realized that if the hole was allowed to grow bigger more water would rush through and eventually the whole dike would give way and flood the town.  He bravely stuck his finger in the hole until others came to his assistance to plug the hole in the dike, which prevented the town from being flooded.  This young boy had an interest in protecting his town; he felt part of the town and took the initiative out of his concern for all those in the town.

Today in many countries in Asia there are many holes, if not large cracks, in the dikes that safeguard the rule of law.  The whole edifice of the rule of law is threatened by constant attempts by the executive branch of governments to do whatever they deem useful to maintain or increase their power.  In many countries Asian people don’t feel that they have any interest in making self-sacrifices to promote or protect the rule of law.  Very often this is because an atmosphere of fear, supported by constant intimidation and occasional violence, has so frightened people that they are very hesitant to speak out for the common good, or even to protect their own rights.  Even lawyers, who are well educated and have a fairly high social standing in society, have been hesitant to speak up, even when they realize what has been happening.  Whether out of fear or passivity, prompted by concern for their personal income or safety, lawyers have often remained silent and have accepted the holes in the dike safeguarding the rule of law.

The Defence of human rights is primarily an obligation and a function of the state.  Unfortunately, despite the fact that of the ratification of international treaties relating to human rights, many government agencies are the major violators, rather than the protectors, of human rights.  Moreover, we can observe the development of political systems that are ideologically based on the premise that given certain conditions the violations of human rights are unavoidable, if not inevitable.  The suspension of laws and suspension of human rights has been defended under the mantras of counter insurgency, anti-terrorism and economic development.  While no government leaders speak openly against the rule of law they regularly violate the rights of people to achieve short-term goals and to protect their interests and power.  Spending for military purposes has been increasing, while funding for education and the basic needs of poor people has been cut back.  When ordinary people seek to protest or make demands their rights are ignored or trampled on.

In Pakistan during the 60 years of its independence, approximately 32 years have been under the absolute control of military dictatorships.  Military leaders have alleged that civilian governments have been corrupt and self-serving, but the military itself has proven to be more corrupt and more self-serving, protecting their own interests, while serving the interests of the traditional elite.  Military dictators have sought to promote an image of efficiency, while in the name of security they have trod on the rights of the majority of the people in Pakistan. 

One of many examples of the “efficiency” of the corrupt military regime of General Musharaf was the collapse in Karachi on September 1, 2007 of a newly constructed bridge that had been erected by a military organization.  

According to various sources, the Shershah Bridge of the Northern bypass project was constructed by a military organization, the National Logistic Cell (NLC), which did not have any previous experience in the construction of bridges.  The NLC was associated with the Pakistan army communication system, mainly used during the Afghan war, for supplying goods, arms and ammunition to the Afghan warlords.  The USA media has alleged that the NLC transported narcotics during that period. 

The contract to construct the Shershah Bridge was awarded to the NLC, without any formal bidding, by the National Highway Authority (NHA), an army run authority which is generally headed by a serving General of the Pakistan Army. 

An example of military corruption was the theft, by the Minister of Law, Justice and Human Rights in Pakistan, Mohammad Wasi Zafar, of money provided by the Norwegian Government for victims of human rights abuses.  The minister was accused of making a false list of 560 victims of abuse to illegally obtain the money from that fund. 

There has been a whole range of human rights abuses committed by the military.
Among the abuses associated with the military regime in Pakistan was the enforced disappearances of persons following illegal arrests.  This had regularly occurred in Pakistan since the military government took power in 1999.  The situation became worse after the 9/11 incident in the United States, when the government of General Musharraf believed that it had a free hand, because of the ‘war on terror,’ to arrest people and keep them incommunicado for months on end.  Eventually those persons either disappeared or were found dead by the roadside.  It is very difficult to ascertain accurate numbers of disappeared people, but various political and religious organizations have claimed that more than 4,000 persons have remained missing after their arrests.  According to cases involving missing persons filed in various courts, the majority of them in the Supreme Court of Pakistan, a list of about 300 persons has been prepared.  After action taken by the judiciary, the military government was pressured to release some of the missing people, believed to have been in the custody of the military intelligence agencies.
It is a common practice in Pakistan for arrested persons to be subjected to physical and mental torture in order for the police to obtain a confession, other information, or extort money. Methods of torture used by the police include beating with fists, kicking, using wooden sticks or a piece of reinforced leather and burning the victim with cigarettes butts. In fact, police and law enforcement agencies seem to be conditioned to think that it is their duty to torture suspected criminals. This is in contradiction to the Constitution of Pakistan, which clearly prohibits the torture of any person: Article 14 (2) states, “No person shall be subjected to torture for the purpose of extracting evidences." Article 5 of the Universal Declaration of Human Rights also obliges Pakistan to ensure that "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."
There were widespread reports of torture throughout Pakistan under the rule of General Musharaf.  During the period from 2004 to 2005 there were 2,000 reported cases of torture committed by the state.    In the first five months of 2006, over 400 persons from Balochistan and 200 persons from the northern areas of Pakistan, in particular the tribal areas, were detained and tortured on political grounds by the army, police and other state agencies. Furthermore, many cases of torture have not been reported to the police because the victims feared reprisals.

News reporters were not exempt.  In March 2006, Mr. Mukesh Rupeta, a reporter for Geo TV and Mr. Sunjay Kumar, a cameraman, were arrested by the military, after which their whereabouts were not known. Three months later, they were finally produced in court.  According to their family members, both of the media men were so severely tortured that they were unable to speak or even move much.  A few months later, on June 15, 2006 the bullet-riddled body of journalist Mr. Hayat Ullah, who had been picked up by the military on December 5, 2005, was found.

While many of those murdered by the military were ordinary citizens and not noticed outside their network of family and friends, the assassination of Benazir Bhutto, who was the leader of one of the best-known political parties in Pakistan, demonstrated the extent to which the military government was prepared to go.

It was in this general context that the world saw the dismissal and arrest of the Chief Justice of Pakistan. Chief Justice Chowdary, while under house arrest wrote, “Needless to say that the Constitution of Pakistan contains no provision for its suspension, and certainly not by the Chief of Army Staff. Nor can it be amended except in accordance with Articles 238 and 239, which is by Parliament and not an executive or military order. As such all actions taken by General Musharraf on and after November 3 are illegal and ultra vires the Constitution. That is why it is no illusion when I describe myself as the Chief Justice even though I am physically and forcibly incapacitated by the state apparatus under the command of the General. I am confident that as a consequence of the brave and unrelenting struggle continued by the lawyers and the civil society, the Constitution will prevail.”

When the lawyers in Pakistan saw that General Musharraf had dismissed the chief justice of Pakistan and placed 60 high court judges under house arrest, they realized that whatever semblance of the rule of law that still remained in the country would soon disappear and that while the structures would remain, the judges would become mere puppets controlled by a de facto dictator.   The Bar Association organized regular demonstrations to protest the dismissal of the new chief justice and High Court judges.  They refused to attend court.  They thus did not have any source of income during that period.  They also realized that they could have been arrested or even beaten and killed.  They risked everything for the sake of trying to reinstate the rule of law in Pakistan.

The scale of the demonstrations against the regime was unprecedented in recent history. This is because the military regime was able to use its power to crush all opposition on the pretext of 'anti terrorism'.  However this time, the protest was lead by the legal profession.  Hence commentators noted if military force was used to crush this democratic protest it would very likely spur even more serious demonstrations from other professions and sectors of Pakistani society.

By recognizing the contribution made by Muneer Malik, the former President of the Pakistan Supreme Court Bar Association, together with his successor, Choudhry Aitezaz Ahsan, the AHRC is in fact recognizing the whole movement for the rule of law, the independence of the judiciary and democracy in Pakistan. Therefore, on this occasion it is appropriate to call upon judges, lawyers, and all other concerned persons throughout the world to take a moment to stop and reflect on the current threats to the rule of law, justice and democracy in many countries.  In particular, we need to recognize the threat posed by militarism to the very survival of a decent human society. Those intellectuals who advocate militarism as a necessary stage of development need to consider the horrendous consequences of such theories for the peoples of many countries.  The most glaring example is the suffering of people in Burma.

The Pakistani lawyers lead by Muneer Malik and Choudhry Aitezaz Ahsan are like the boy who put his finger in the dike.  Their bravery, self-sacrifice and determination not only helped protect the dike safeguarding the rule of law, but their example motivated other people to join their cause and eventually lead to the reestablishment of a democratically elected government in Pakistan. 

Words of congratulations must also be offered to those lawyers throughout the world who took a very active part in supporting the movement of their colleagues in Pakistan.  There was strong ongoing support from lawyers, as individuals and as bar associations, from the Netherlands, Canada, the United States and many other countries.  This movement of solidarity among those who care for justice, and the proper administration of justice, needs to be nurtured and improved in order to forge links of solidarity with all those people in the world whose lives and security are threatened by a breakdown of the rule of law.  Perhaps we need to engender an international movement of lawyers and others to ensure that the administration of justice is based on due process, the rule of law and democracy.

There are black clouds looming on the horizon.  The newly elected government in Pakistan has still not fully restored Iftekhar Choudhry as the chief justice.  Further, the newly elected government has still not acted on the issue of the restitution of the 60 deposed judges including 17 judges of the Supreme Court.  The judicial crisis is hampered by the attempt to retain those judges who sided with President Musharraf when the whole country was agitating the state of emergency and the suspension of the constitution and fundamental rights.  There does not seem to have been much response to the horrific incident on April 9, 2008 in which two lawyers, two women, another man and one child were burned alive in a Karachi lawyer’s office building, which had been deliberately set on fire. On that same day several other people were also killed as the result of attacks on members of the Karachi Bar Association.

We hope that the exploits of the Pakistani lawyers and the leadership of Malik and Ahsan will become as widely told as the story of the little Dutch boy, so that young people throughout Asia will be inspired and encouraged to reinforce the dikes protecting the rule of law. 

So we again congratulate Muneer Malik and Choudhry Aitezaz Ahsan and all those lawyers who struggled with them and present them with the Human Rights Defenders Award. 

Jack Clancey
Chairman, Asian Human Rights Commission
May 13, 2008

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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.

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