CONSTITUTIONAL ORDER IN PAKISTAN: THE DYNAMICS OF EXCEPTION, VIOLENCE AND HIGH TREASON A DISSERTATION SUBMITTED TO THE GRADUATE DIVISION OF THE UNIVERSITY OF HAWAI‘I OF MĀNOA IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY IN POLITICAL SCIENCE May 2012 By Syed Sami Raza Dissertation Committee: Michael J. Shapiro, Chairperson Roger Ames Manfred Henningsen Sankaran Krishna Nevzat Soguk TABLE OF CONTENTS Acknowledgments…………………………………………………………………………………………………iii Abstract………………………………………………………………………………………………………………… v Introduction ……………………………………………………………………………………………………………...1 I. Disruption of the Constitutional Order and the State of Exception 1. Disruption of Pakistan’s and other Post-Colonial States’ Constitutional Order: Courts and Constitutional Theory……………………..24 2. Disruption of Constitutional Order in Pakistan: Figuring the Locus of the State of (Religious) Exception…………………………………………………..72 II. Disruption of the Constitutional Order and the Law of High Treason 3. Disruption of the Constitutional Order in Pakistan: A Critique of the Law of High Treason…………………………………………………………………………100 4. Law of High Treason, Anti-Terrorism Legal Regime in Pakistan, and Global Paradigm of Security………………………………………………………..148 Conclusion……………………………………………………………………………………………………………...196 191 Table of Cases …………………………………………………………………………………………………………203 Bibliography……………………………………………………………………………………………………………206 iii ACKNOWLEDGEMENTS I would like to thank my adviser—Michael J. Shapiro—for being friendly and supportive throughout the program. Without his continuous support, it would have been difficult to finish the program in four and a half years. As I appreciate Mike’s moral support, I also appreciate his academic and intellectual mentoring. In his classes and lectures, I acquired the taste for micro-politics, cinematic political thought, and critical methods. The reader will notice that the methodology of the dissertation is informed of critical methods, albeit the subject matter revolves around constitutional politics and theory. I would also like to thank rest of the committee members for their support and feedback. Manfred Henningsen took keen interest in the constitutional politics and court decisions of the Supreme Court of Pakistan, and of several other post-colonial states. He helped me understand the German constitutional and political theory, which I engage in detail. Moreover, I appreciate Manfred for carefully reading the earlier drafts, giving valuable feedback, and assisting in proofreading. Sankaran Krishna and Nevzat Soguk provided valuable feedback on the subject matter. Since Krishna’s research focuses on South Asia and postcolonial world in general and Soguk’s research focuses on the Muslim World, they could not only challenge my earlier ideas, but also provided alternative ideas. Roger Ames contributed to my understanding of the War on Terror. I am also thankful to Deborah Halbert for reading parts of this dissertation and helping me articulate my ideas. iv I am most grateful to my parents—Jawed Hussain and Perveen Jawed—as well as my siblings—Saima R., Anbarin F., Tahir R., Ali R., and Faisal R.—for their patience and moral support. Many thanks also to my friends, especially, Kavina Dayal, Azeema F., Aliza, Taira F., Melisa C., Brianne G., Shakeel M., Ayub J., Farzand A., Sam Opondo, Umi, Willy, Rex T., Guanpei and many others for their wonderful company. iv ABSTRACT Pakistan’s constitutional order has faced several disruptions over the past sixty years. The latest disruption occurred in 2007 when President General Pervez Musharraf declared a state of emergency in the country and suspended the constitution. Again, in the aftermath of the American Special Forces’ operation at Osama bin Laden’s hideout on May 2, 2011, the country came close to a military coup d’état as the relationship between the government and the army considerably deteriorated. Apart from the threat of a military coup d’état, the constitutional order of Pakistan has faced, directly or indirectly, two more threats: the Islamists’ struggle for Sharia and the anti-terrorism legal regime. In the summer of 2007, the Islamists of the Red Mosque revolted against the democratic constitutional system and demanded its replacement with Sharia. Around the same time, human rights activists challenged the anti-terrorism legal regime on the account that it violated constitutional rights and guarantees. Just as these political developments threatened the fledgling constitutional order, the juridical debate on the problem of constitutional disruption did not gain the necessary sense of urgency in the country. In this dissertation, I embark upon a critical and theoretical study of these political developments. To do this, I first analyze the decisions of the Supreme Court in various cases of constitutional disruption. Second, I search for constitutional reasons of the Islamists’ demand for the abolition of the constitutional order. Third, I identify and interpret the nature of law of high treason in the constitutional order and its perceived role in forestalling constitutional disruption. Finally, I take up the anti-terrorism legal regime from a genealogical and comparative perspective to analyze its disruptive impacts on the democratic character of the constitutional order. INTRODUCTION In the last decade (2000-2010), the year 2007 was one of the most tumultuous in Pakistan’s political and constitutional history. Several major developments of political and constitutional significance occurred in this year. For instance, lawyers and judges initiated a political movement—popularly known as the Lawyer’s Movement—to resist the arbitrary removal of judges and to uphold the independence of judiciary. Islamists of the Red Mosque revolted against the democratic constitutional order and demanded the implementation of Sharia in the country. The Supreme Court took up the cases of the so-called “missing persons” to the much vexation of General President Prevez Musharraf. In other words, the Court questioned the legality of the anti-terrorism laws under which the intelligence agencies operated to counter terrorism. All these developments, in one way or the other, related to resisting the dictatorial regime of Musharraf. Despite facing tough resistance, Musharraf continued to jealously guard his power seat. In addition, he sought to extend his presidency for a term of five years. To do this, he prodded the outgoing parliament to re-elect him. Because his re-election was in contravention of the constitution, it stirred fury among those in the Lawyers’ Movement. For instance, the Supreme Court is petitioned to decide on the legality of Musharraf’s re-election. However, before the Supreme Court could give its verdict, Musharraf suspended the constitution and declared a state of emergency in the country. Then he proceeded to deal with the Supreme Court. He required the judges to take a 2 new oath under the Provisional Constitutional Order (PCO) and the Oath of Office (Judges) Order, 2007. But to his surprise, a large number of judges refused to take the oath. They instead joined the Lawyers’ Movement. Within a year, the movement grew so powerful that Musharraf was forced to resign. Whereas the Lawyers’ Movement to depose Musharraf was successful, the Islamists’ movement for the abolition of the democratic constitutional order and the implementation of Sharia was not. In fact, it met a violent end. The government ordered the armed forces to place the Red Mosque and its adjacent seminaries under siege. The state of siege continued for more than a week. Negotiations were arranged between the representatives of the government and the Mosque. However, the negotiations failed, and eventually, the government decided to suppress the Islamists’ revolt by military operation. On the other hand, on the constitutional front, the battle between the general president and the judges did not end with his resignation. After the new government reinstated the judges, the Sind Bar Association petitioned the Supreme Court to take up the question of legality of Musharraf’s declaration of emergency and suspension of the constitution. The question of legality was an important juridical question, even though it was not a new question for the Supreme Court. Given the earlier opposing precedents established by the earlier benches of the Court, the question carried historical (and theoretical) significance. Moreover, the petition was significant from another legal dimension i.e., it involved charges of high treason against the military president. The court carefully reviewed the history of constitutional disruptions in Pakistan and concluded that Musharraf’s disruption of the constitution was invalid and illegal. The 3 court also observed that by disrupting the constitutional order Musharraf committed high treason. One of the crucial dynamics that comes to fore from the above-mentioned developments of political and constitutional significance is the peculiar struggle over the constitutional order. On the one hand we see lawyers, judges and politicians protesting for the restoration of the constitutional order in its original form. On the other we see Islamists demanding abolition of the same order. At the same time, we also see the general president tampering with the constitutional order so as to extend his dictatorial regime. In this dissertation I aim to study this peculiar struggle over the constitutional order from historical and constitutional theory perspective. Literature and Methodology