Singapore Democrats - When rights can mean life and death

Tuesday, 11 May 2010 Chee Soon Juan

"Are you Dr Chee Soon Juan?" an elderly woman asked tentatively.

"I need to talk to you," she continued as she confirmed my identity. "I have been found guilty of poisoning my husband. But I was forced into confessing. The officer who questioned me was very harsh."

"She was not allowed to call me when she was at the station," her son jumped in. "She couldn't even have a lawyer present unlike in Hong Kong or London." The following day the media reported on the case (here).
This is a little known fact in Singapore. Most people are not aware that if you are called up for questioning by the police, you don't have the right to a counsel while you are being interrogated. And if you are forced into confessing to the crime, in its exceedingly difficult to get the court to accept your retraction of the confession and that it was made under duress.

This seemed to be the case when District Judge Ng Peng Hong threw out Madam Fong Quay Sim's (pictured above) defence that she was forced into confessing that she had poisoned her husband by lacing his food and drink with arsenic.

The 68-year-old granny said during the trial that Station Inspector Faisal Sheik Abdul had pressured her into signing the confession by interrogating her in a very harsh manner. Judge Ng concluded that "there was no intense interrogation", threw out Mdam Fong's defence and convicted her. Sentencing was postponed.

Is Mdm Fong telling the truth? How did the Judge know that there was no intense interrogation? He had only the word of the interrogation officer. Which raises another question: Would the police sink so low as to force confessions from suspects?

They have in the past.

In 1989, Mr Zainal Kuning was charged together with two accomplices, brothers Mohd Ismail and Salahuddin Ismail, for savagely stabbing a coffee shop caretaker to death. During the trial the prosecution produced a signed statement from Mr Zainal confessing to the crime.

At the hearing Mr Zainal retracted his confession and contended that he was forced into signing it. He said that he was denied food and drink for several hours when he was questioned, and claimed that he was repeatedly marched to the toilet where he was drenched, and then made to stand on a chair under the air-conditioner holding two telephone books with arms outstretched.

The accused even said that at one point, an officer grabbed his hair and banged him against the wall. After 24 hours, the accused gave in and confessed.

Rather fortuitously, however, during the three years in remand awaiting trial, Mr Zainal learned from one of his fellow inmates that the inmate had overheard a man by the name of Man Semput boasting how he had killed the caretaker. He even showed off the scars on his chest when the victim threw boiling water at him.

Mr Zainal engaged the late J B Jeyaretnam as counsel. Jeyaretnam argued that the police had no evidence linking his client to the murder scene. There was only the confession which his client had said was forced out of him.

Hight Court Judge (the late) T S Sinnathuray rejected Jeyaretnam's argument and like, Judge Ng Peng Hong in Mdm Fong's case, ruled that the confession was made voluntarily.

During the late stage of the trial, the police managed to locate a man by the name of Mohd Sulaiman aka Man Semput. Fingerprints lifted at the scene of crime confirmed that Mr Sulaiman was their man, not Mr Zainal.

DPP Bala Reddy had no choice but to withdraw the prosecution's case.

After more than three years in prison and coming close to death, Mr Zainal and the Ismail brothers walked free.

The three men subsequently sued the police officer who interrogated them and accused the police of torture, malicious prosecution and defamation. They lost. The media gave scant coverage to the matter.

Mr Chris Lydgate, in his book Lee's Law: How Singapore crushes dissent, chronicled the case. He wrote:

What was more perplexing was the wall of silence surrounding the case...The entire country, it seemed, was unwilling or unable to to discuss the issue. The trial might as well never have happened.

This leads me back to my original point. How is it that suspects can be left with police interrogators for questioning during which confessions can be involuntarily extracted with no witnesses around? How can judges accept such an arrangement?

Abuses by police officers who are under pressure to deliver results can, and have been shown to, occur. Without a lawyer present during interrogation, suspects are at the mercy of their captors. Innocent people like Zainal Kuning, Mohd Ismail and Salahuddin Ismail can be victimised.

In the present case, did Mdm Fong really poison her husband? Did Inspector Faisal force her to confess? Only Mdm Fong and Mr Faisal know.

Here comes the million-dollar question: Why not remove all doubt by ensuring that suspects have lawyers and/or witnesses present during interrogation? If the evidence is strong enough the suspect may want to voluntarily confess on the advice of his/her lawyer. At the very least, accusations of confession under duress can be eliminated.

Such butchery of due process must be reviewed without which we could be wrongly convicting innocent people and even sentencing them to their deaths. With the mandatory death penalty in play in Singapore, such a review is all the more urgent.

Calling Chief Justice Chan Sek Keong, Law Society and Singaporean lawyers...

FBI broke law for years in phone record searches

Image via Wikipedia

By John Solomon and Carrie Johnson
Special to The Washington Post and Washington Post Staff Writer
Tuesday, January 19, 2010; A01

The FBI illegally collected more than 2,000 U.S. telephone call records between 2002 and 2006 by invoking terrorism emergencies that did not exist or simply persuading phone companies to provide records, according to internal bureau memos and interviews. FBI officials issued approvals after the fact to justify their actions.

E-mails obtained by The Washington Post detail how counterterrorism officials inside FBI headquarters did not follow their own procedures that were put in place to protect civil liberties. The stream of urgent requests for phone records also overwhelmed the FBI communications analysis unit with work that ultimately was not connected to imminent threats.

A Justice Department inspector general's report due out this month is expected to conclude that the FBI frequently violated the law with its emergency requests, bureau officials confirmed.

The records seen by The Post do not reveal the identities of the people whose phone call records were gathered, but FBI officials said they thought that nearly all of the requests involved terrorism investigations.

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FBI general counsel Valerie Caproni said in an interview Monday that the FBI technically violated the Electronic Communications Privacy Act when agents invoked nonexistent emergencies to collect records.

"We should have stopped those requests from being made that way," she said. The after-the-fact approvals were a "good-hearted but not well-thought-out" solution to put phone carriers at ease, she said. In true emergencies, Caproni said, agents always had the legal right to get phone records, and lawyers have now concluded there was no need for the after-the-fact approval process. "What this turned out to be was a self-inflicted wound," she said.

Caproni said FBI Director Robert S. Mueller III did not know about the problems until late 2006 or early 2007, after the inspector general's probe began.

Documents show that senior FBI managers up to the assistant director level approved the procedures for emergency requests of phone records and that headquarters officials often made the requests, which persisted for two years after bureau lawyers raised concerns and an FBI official began pressing for changes.

"We have to make sure we are not taking advantage of this system, and that we are following the letter of the law without jeopardizing national security," FBI lawyer Patrice Kopistansky wrote in one of a series of early 2005 e-mails asking superiors to address the problem.

The FBI acknowledged in 2007 that one unit in the agency had improperly gathered some phone records, and a Justice Department audit at the time cited 22 inappropriate requests to phone companies for searches and hundreds of questionable requests. But the latest revelations show that the improper requests were much more numerous under the procedures approved by the top level of the FBI.

FBI officials told The Post that their own review has found that about half of the 4,400 toll records collected in emergency situations or with after-the-fact approvals were done in technical violation of the law. The searches involved only records of calls and not the content of the calls. In some cases, agents broadened their searches to gather numbers two and three degrees of separation from the original request, documents show.

Bureau officials said agents were working quickly under the stress of trying to thwart the next terrorist attack and were not violating the law deliberately.

FBI officials said they are confident that the safeguards enacted in 2007 have ended the problems. Caproni said the bureau will use the inspector general's findings to determine whether discipline is warranted.

The internal memos were obtained from a government employee outside the FBI, who gained access to them during the investigations of the searches. The employee spoke on the condition of anonymity because the release was unauthorized.

After the Sept. 11, 2001, attacks, the need to get information quickly and connect the dots was considered paramount throughout the federal government. The failure to obtain timely and actionable information has been a recurrent theme in the U.S. counterterrorism effort, up to and including the recent shootings at Fort Hood, Tex.

Before 9/11, FBI agents ordinarily gathered records of phone calls through the use of grand jury subpoenas or through an instrument know as a national security letter, issued for terrorism and espionage cases. Such letters, signed by senior headquarters officials, carry the weight of subpoenas with the firms that receive them.

The USA Patriot Act expanded the use of national security letters by letting lower-level officials outside Washington approve them and allowing them in wider circumstances. But the letters still required the FBI to link a request to an open terrorism case before records could be sought.

Shortly after the Patriot Act was passed in October 2001, FBI senior managers devised their own system for gathering records in terrorism emergencies.

A new device called an "exigent circumstances letter" was authorized. It allowed a supervisor to declare an emergency and get the records, then issue a national security letter after the fact.

The procedure was based on a system used in the FBI's New York office in the days immediately after the Sept. 11 suicide hijackings, officials said.

On Jan. 6, 2003, then-FBI Assistant Director for Counterterrorism Larry Mefford issued a bureau-wide communique authorizing the new tactic, saying the bureau's telephone analysis unit was permitted in "exigent circumstances . . . to obtain specialized toll records information for international and domestic numbers which are linked to subjects of pending terrorism investigations."

The e-mail called this new method of gathering phone records "imperative to the continuing efforts by the FBI to protect our nation against future attacks," even as it acknowledged the phone records of many people not connected to a terrorism investigation were likely to be scooped up.

The 2003 memo stated that the new method "has the potential of generating an enormous amount of data in short order, much of which may not actually be related to the terrorism activity under investigation."

Within a few years, hundreds of emergency requests were completed and a few thousand phone records gathered. But many lacked the follow-up: the required national security letters.

Two individuals began raising concerns.

Special Agent Bassem Youssef, the new supervisor of the communications analysis unit that gathered the records, began to receive complaints from phone companies that they had not received documentation to show the searches were legal.

Youssef, a longtime counterterrorism investigator, had earlier fallen out of favor with FBI management as he pursued a whistleblower claim that he had been wrongly retaliated against and denied promotion because of his ethnicity.

He raised questions in spring 2005 with his superiors and the FBI general counsel's office about the failure to get national security letters. E-mails show he pressed FBI managers, trying to "force their hand" to implement a solution.

Youssef's attorney, Stephen Kohn, said Monday that he could not discuss the specifics of the investigation except to confirm that his client cooperated with the inspector general. FBI officials said they could not discuss the conduct of individual employees.

Separately, Kopistansky in the FBI general counsel's office learned in mid-December 2004 that toll records were being requested without national security letters. She handled a request that originated from then-Executive Assistant Director Gary Bald, who had "passed information regarding numbers related to a terrorist organization with ties to the US" and obtained toll records, the memos show.

The communications analysis unit asked Kopistansky to "draw up an NSL" to cover the search, but she was unable to get superiors to tell her which open terrorism case it involved. The request "has to specify why the numbers are relevant to an authorized investigation," she said.

An employee in the communications analysis unit wrote back that most of the emergency requests he received "come from upper mgmt. I don't always receive documentation or know all the facts related to the number, which is a problem for me when I try to get the NSL."

Kopistansky persisted, demanding an open terrorism case file for the legal rationale. "I am sure you know it is true and Gary Bald knows it's true, but it needs to be reflected on a piece of paper," she wrote.

Two months later, Kopistansky was still unable to issue a national security letter to comply with the FBI rules.

She took note of the overall problem. The issuance of a national security letter after exigent searches "rarely happens," Kopistansky warned in a March 11, 2005, e-mail seeking the help of the FBI's top national security lawyer and the deputy counsel.

By March 2005, Kopistansky and Youssef were discussing a worsening "backlog" of other cases where no national security letters had been issued and growing concerned that exigent letters were being abused, e-mails show.

"I also understand that some of these are being done as emergencies when they aren't necessarily emergencies," Kopistansky wrote in an April 26, 2005, e-mail to Youssef.

Kopistansky and the other FBI lawyers discussed a strategy to handle the past emergency searches and to allow the practice to continue.

The e-mails show that they conceived the idea to open half a dozen "generic" or "broad" preliminary investigative (PI) case files to which all unauthorized emergency requests could be charged so a national security letter could be issued after the fact.

The generic files were to cover such broad topics as "threats against transportation facilities," "threats against individuals" and "threats against special events," the e-mails show.

Eventually, FBI officials shifted to a second strategy of crafting a "blanket" national security letter to authorize all past searches that had not been covered by open cases.

A November 2006 e-mail chain indicates that then-FBI Assistant Director for Counterterrorism Joseph Billy signed the blanket national security letter. But when FBI lawyers raised concerns about it, he wrote back that he did not remember signing.

"I have no recollection of signing anything blanket. NSLs are individual as far as I always knew," Billy wrote Caproni on Nov. 7, 2006.

Billy did not immediately respond to a message left at his office on Monday. Kopistansky and Bald, reached by phone Friday, said they could not comment without FBI approval. Mefford did not return calls.

In all, FBI managers signed 11 "blanket" national security letters addressing past searches, officials told The Post.

Although concerns about their legality first arose in December 2004, exigent searches continued for two more years. Youssef's unit began limiting the number of exigent letters it signed between summer 2005 and spring 2006, seeking more assurances the requests could be covered by a national security letter, the memos show.

Phone record searches covered by exigent letters ended in November 2006 as the Justice Department inspector general began investigating.

Among those whose phone records were searched improperly were journalists for The Washington Post and the New York Times, according to interviews with government officials.

The searches became public when Mueller, the FBI director, contacted top editors at the two newspapers in August 2008 and apologized for the breach of reporters' phone records. The reporters were Ellen Nakashima of The Post, who had been based in Jakarta, Indonesia, and Raymond Bonner and Jane Perlez of the Times, who had also been working in Jakarta.

Solomon, a former Post reporter and Washington Times editor, is a freelance journalist. Johnson is a Post staff writer.

Obama Takes New Route to Opposing Parts of Laws

Image by Will Lion via Flickr

By CHARLIE SAVAGE

WASHINGTON — The Obama administration is lowering the volume in a long-running argument between Congress and the executive branch over when, if ever, a president has the power to bypass federal statutes he has signed into law.

Legal scholars said the administration’s new approach, which avoids repeating claims of executive power that the White House has previously voiced, could avoid setting off fights with lawmakers. But the approach will make it harder to keep track of which statutes the White House believes it can disregard, or to compare the number of laws challenged by President Obama with former President George W. Bush’s record.

In Mr. Obama’s first months in office last year, he followed recent precedent and frequently issued statements, when signing bills into law, that the executive branch could disregard provisions that he considered unconstitutional restraints on executive power.

Image by Renegade98 via Flickr

But Mr. Obama has not issued a signing statement since last summer, when one claim set off a bipartisan uproar in Congress. And the administration has decided that Mr. Obama will sometimes sign bills containing provisions it deems problematic without issuing a signing statement that challenges those sections.

Still, the administration will consider itself free to disregard new laws it considers unconstitutional, especially in cases where it has previously voiced objections elsewhere, officials said.

The White House disclosed its shift when asked why it had not put out a signing statement last month, when Mr. Obama signed a $447 billion spending bill for 2010. It contained several provisions that restricted executive power in ways that the administration had previously asserted were unconstitutional — including in signing statements attached to similar bills and in policy statements it issued about the spending bill as lawmakers drew it up.

“The administration’s views about certain provisions in the omnibus spending bill had previously been publicly communicated,” said Ben LaBolt, a White House spokesman, “so it wasn’t necessary to duplicate them in a signing statement.”

Since the 19th century, presidents have occasionally used signing statements to declare that parts of a bill were unconstitutional and need not be enforced or obeyed as written. But the tactic was rare until the second term of President Ronald Reagan, whose legal team developed a strategy of issuing the statements more frequently to increase presidential power.

Reagan’s successors continued that approach. And the practice escalated again under Mr. Bush, who used it to advance expansive theories of executive power. He challenged about 1,200 sections of bills — more than all predecessors combined — including a ban on torture and oversight provisions of the USA Patriot Act.

Mr. Bush’s assertive use of the tactic set off a national debate over its propriety. The American Bar Association declared that signing statements “undermine the rule of law and our constitutional system of separation of powers,” and argued that the Constitution gave presidents only two choices: veto a bill, or sign it and obey all of it.

But other scholars said the tactic was appropriate if a president cited only mainstream legal theories. Mr. Obama, whose advisers sided with the latter camp, has characterized Mr. Bush’s use of signing statements as an abuse and pledged greater restraint.

Mr. Obama nevertheless challenged dozens of provisions early last year. The last time was in June, when his claim that he could disobey a new law requiring officials to push the World Bank and the International Monetary Fund to adopt certain policies angered Congress. The White House sought to reassure lawmakers that it intended to take those negotiating positions anyway and was merely noting its view that Congress cannot control foreign negotiations. Many lawmakers rejected that theory, and the House quickly voted 429 to 2 to bar officials from disobeying the restrictions.

Although the recent spending bill received no signing statement, it contained a similar provision about World Trade Organization negotiations, as well as several other types the administration had previously challenged. The White House issued several “statements of administration policy” warning that those provisions raised constitutional concerns while the legislation was pending, but Congress did not change them.

Representative Barney Frank, Democrat of Massachusetts, who led last summer’s backlash, said the White House risked losing Congressional support for international economic organizations. Mr. Frank also said it was “outrageous” to contend that if Congress disagreed with the administration’s opinion that a provision would be unconstitutional, the president could sign the bill and disobey it.

“They have a legitimate right to tell us their constitutional concerns — that’s different from having a signing statement,” Mr. Frank said. “Anyone who makes the argument that ‘once we have told you we have constitutional concerns and then you pass it anyway, that justifies us in ignoring it’ — that is a constitutional violation. Those play very different roles and you can’t bootstrap one into the other.”

But Peter M. Shane, an Ohio State University law professor, praised the approach as a step toward a return to the “normalcy” of how presidents used signing statements through Reagan’s first term. Mr. Shane has previously criticized the administration over its frequent early use of the device.

Still, Jack L. Goldsmith, a Harvard law professor who led the Justice Department’s Office of Legal Counsel in 2003-04, argued that an approach of issuing fewer signing statements would “not be terribly consequential” in practice because the executive branch could still override a provision that its legal team later pronounces unconstitutional.

Last year the Obama administration disregarded a statute that forbid State Department officials to attend United Nations meetings led by nations deemed state sponsors of terrorism. Congress has included that restriction in several recent bills.

When Mr. Bush signed one such bill, he issued a signing statement instructing officials to view the law as merely advisory, and they attended at least one such meeting on his watch. By contrast, when Mr. Obama signed another bill with an identical provision, he did not specifically single it out for challenge. But his administration later obtained an Office of Legal Counsel opinion pronouncing it unconstitutional, and officials continued to attend such meetings.

Unlike signing statements, opinions from the Office of Legal Counsel are often secret. Mr. Goldsmith said the administration’s approach of issuing fewer signing statements would mean “somewhat less accountability.”

“I think it’s a bad development if they are not going to highlight for the nation in all these new statutes where they think there are problems,” he said.

The White House, however, said it had given clear public notice about its views.

“Each piece of legislation,” Mr. LaBolt said, “is considered on an individual basis to determine whether a signing statement is necessary, and communications regarding the administration’s views on legislation such as Statements of Administration Policy will continue to be publicly available for Congress and all Americans to evaluate.”

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• Obama's Constitutional Belief That He Can Ignore Laws Passed By Congress Doesn't Apply to Civil Rights (queerty.com)

Egyptian Pro-Reform Activists Say U.S. Commitment Is Waning - washingtonpost.com

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By Sudarsan Raghavan
Washington Post Foreign Service
Friday, October 9, 2009

MAHALLAH AL-KOBRA, Egypt -- Four months after President Obama delivered an address from Cairo in which he voiced American commitment to human rights and the rule of law, concern is mounting among Egypt's pro-reform activists that the United States is abandoning its long-standing efforts to bring democratic reforms to the Arab world's most populous nation.

Since the speech, Egyptian security forces have launched a fresh campaign against the banned Muslim Brotherhood, an influential Islamist opposition group, arbitrarily arresting hundreds of members, from young bloggers to senior leaders. The government has prevented a centrist opposition movement from legally becoming a political party. In this Nile Delta industrial city, the epicenter of recent worker strikes, the government has appeared unresponsive to labor concerns -- or is cracking down.

"We are very disgruntled with President Obama," said Kamal al-Fayoumi, a labor leader who was jailed by the government for launching a major strike last year. "He has given the regime the green light to do what it wants with the Egyptian people."

U.S. pressure for democratic reforms in Egypt, once effective, waned in the final years of the Bush administration. But critics charge that the pressure has significantly eased at a time when Egypt is nearing a crucial political transition: The presidential election is set for 2011, and speculation is rife that incumbent Hosni Mubarak, 81, will anoint son Gamal as his successor before the election, raising fears that the regime will undemocratically extend its 28-year-old rule.

"We may have changed tactics, but our commitment to democracy and human rights promotion in Egypt is steadfast," a U.S. Embassy official said in an e-mailed response to questions. Senior American officials will continue to raise these issues in meetings with Egyptian counterparts, the official added.

The frustrations have been compounded by sharp cuts in U.S. funding for democracy programs in Egypt as much as by the Obama administration's soft tone and warmer relationship with the Mubarak government. Activists say Obama's middle-ground approach could have significant repercussions in a region dominated by autocrats, who respond only to pressure.

"His reduced talk of democracy is giving these non-democratic regimes the security that they won't face pressure. And that's having a negative impact on democracy in the Arab world," said Ayman Nour, a prominent opposition politician.

Today, the Obama administration is increasingly relying on Egypt to jump-start the Arab-Israeli peace process and to contain pro-Iran radical groups, such as Hamas and Hezbollah.

Obama has met with Mubarak three times, reestablishing Egypt's position as a key strategic ally in the Arab world. This marks a significant departure from the Bush administration, during which tensions between Washington and Cairo raged over U.S. policies in the Middle East, the 2003 invasion of Iraq and American criticism of Egypt's political and human rights record.

The clearest indication yet of the U.S. shift is the funding cuts, activists say. Last year, the United States allocated $54.8 million for democracy programs, of which $27.85 million went to civil society programs, the nexus of grass-roots activism for democracy. This year, the funding has shrunk to $20 million, of which $5 million went to civil society groups. The cuts were made by the Bush administration; for 2010, the Obama administration has allocated $25 million, an increase from this year's funding but still well below the 2008 figure. The U.S. Embassy official said an additional $4 million in funding for civil society groups would come from other sources.

Although the Bush administration's policies were largely reviled across the Arab world, many Egyptians credit them with ushering in some political reforms. Under U.S. pressure, Egypt held its first contested presidential election. Independent newspapers, Web sites and blogs flourished.

"The truth is it was pressure by George Bush that brought political reforms and political mobilization," said Ibrahim Issa, a columnist and government critic who was jailed for writing that Mubarak was ill.

Senior Egyptian officials openly admit they prefer Obama to Bush.

"He is not interfering in the domestic affairs of countries," said Ali Eddin Helal, a top spokesman for the ruling National Democratic Party. "He's not trying to achieve objectives through confrontation or pressure, but through brokering and reconciliation."

Nour, the opposition politician, was a beneficiary of American pressure. Criticism of the regime mounted after he was jailed on unsubstantiated fraud charges in the wake of the 2005 election. He was freed this year. The release was widely seen as a bid by Mubarak to improve relations with the Obama administration -- and to send a signal that any U.S. pressure would be counterproductive.

In an interview, Nour shook his head when asked whether he thought the Obama administration would apply similar pressure if the government were to jail him again.

"They are focused on Israel," Nour said. "They believe the current regime works, so they shouldn't take any risks."

Others sense a growing fatigue. "The Americans, I think, are fed up with the Egyptians," said Anwar E. el-Sadat, the nephew of assassinated Egyptian President Anwar Sadat and an opposition leader. "They have been spending millions promoting democracy, and nothing happened."

The government, meanwhile, is escalating its crackdown. On Saturday, 16 Muslim Brotherhood members were detained on charges of violating a law that requires government approval to hold a political gathering.

The Muslim Brotherhood's opposition to U.S. policies in the Middle East, as well as its popularity, ultimately helped to doom the Bush administration's push for political reforms. American officials worried that the Islamists could one day replace Mubarak if democracy took root.

Many activists fear that the Obama administration feels the same way -- and will legitimize what many expect will be Gamal Mubarak's ascendancy in a nation that has never experienced a democratic transfer of power.

"We were hoping Obama would be different than other U.S. administrations," said Gamal Eid, executive director of the Arabic Network for Human Rights. "But America is concerned more about stability than democracy."

Law Bans 'Separatist' Talk - RFA

Authorities pass a law that bans the discussion of separatism in a northwestern China divided by ethnic tensions.

AFP

Chinese paramilitary police trucks drive through downtown Urumqi, July 9, 2009.

HONG KONG—Authorities in China's northwestern Xinjiang Uyghur Autonomous Region (XUAR) have passed a law making it a criminal offense to discuss separatism on the Internet following months of ethnic strife.

Xinjiang's People's Congress Standing Committee passed the "Information Promotion Bill" last week banning people in the region from using the Internet in any way that undermines national unity, incites ethnic separatism or harms social stability.

Armed police now stand guard in public places around the XUAR and are detaining anyone found with footage of ethnic riots that erupted in the regional capital Urumqi last July.

Meanwhile, local residents and officials said Urumqi was tense and fearful following a series of stabbings in public places with hypodermic syringes in early September.

"Ever since the needle stabbing incidents ... there have been armed police on the buses, especially at night, checking people's bags," a resident surnamed Zhou said.

"Now, whenever we ride the bus or go to the supermarket or other public places, they check everyone's bags. This is done out of desperation."

Hunt for evidence

A government official in Urumqi said that the hunt was on to collect evidence related to the recent ethnic violence, which began July 5 after police suppressed a peaceful demonstration of Uyghurs and has left 197 mostly Han Chinese residents dead, according to official media.

"The public security bureau started trying to collect evidence, pulling stones and rocks out of the rubble, trying to find traces of blood," the government official said.

"But there wasn't enough evidence left behind. It had all been cleared away to make the streets clean again. It looked as if nothing had happened, but in fact, the evidence was all gone."

Meanwhile, Urumqi authorities were stepping up controls to ensure that no photos or footage of the July violence was leaked to the outside world.

"They are preventing people from leaving Xinjiang with any photos or video footage of the July 5 incident," an informed source in the city said.

"If they catch anyone trying to do that, they'll be detained."

Discussion blocked

Sichuan-based Internet engineer Pu Fei said a number of cell phone users in Xinjiang had received garbled SMS messages in recent weeks, possibly resulting from their use of "forbidden" words on the list used by government communications filters.

Communications networks in the troubled region have been closed several times in the wake of the July 5 ethnic violence in Urumqi, and any online discussion of the tensions resulted in blockages and closures of Internet and cell phone networks.

"It's very rare to see such a starkly worded piece of legislation," Pu said. "Until now, the regulations have just reminded everyone to avoid certain topics. Now it's been made into law. I think this shows a pessimistic outlook for freedom of speech in this country."

"It seems as if [what happened in] Xinjiang has had a bad effect on everything."

Munich-based World Uyghur Congress spokesman Dilxat Rashit said the legislation should be applied, if at all, to the whole of China, not just to Xinjiang, as people all over the country are discussing the ethnic strife.

"Now, the Uyghurs, who have already been denied their freedom of expression by the Chinese government, are being prevented from expressing themselves either inside China or overseas," he said.

Legal experts said the new legislation was based on rather vague definitions of "subversion."

"The principle behind this piece of legislation is in accordance with China's national security legislation, but it lacks a detailed explanation about what exactly subverting the state means, and what incitement to violence actually consists of," said professor Wang Youjin, of the Chinese University of Political Science and Law.

"There are very few detailed provisions in the National Security Law, and this is causing difficulties."

Communications severed

Residents of Urumqi have frequently reported being cut off from the outside world entirely, as the authorities block media and social networking sites such as Facebook, Twitter, and YouTube.

Officials say terrorists, separatists, and religious extremists used the Internet, telephones and mobile text messages to spread rumors and hatred during the ethnic violence, sparking one of the most comprehensive Internet shutdowns ever reported.

Some footage of the riots has managed to appear on video-sharing sites like YouTube in spite of the clampdown, mostly posted by exiled Uyghurs outside of China.

Urumqi resident Zhou said he was having trouble keeping in touch with his two grown children studying at overseas universities.

"Our eldest daughter is studying at a university overseas. We can't make international phone calls ... and we can't reach her online, either...Basically we have totally lost touch with them," he said.

"We rely on friends in Beijing and other places to relay messages. Complaining about it makes no difference. Who is stronger, the individual or the government?"

"There's nothing we ordinary people can do except sit and wait. What choice do we have? We aren't an armed, military organization."

Original reporting in Cantonese by Hai Lan, and in Mandarin by Qiao Long. Cantonese service director: Shiny Li. Mandarin service director: Jennifer Chou. Translated and written for the Web in English by Luisetta Mudie. Edited by Sarah Jackson-Han.

Corporate Raiding Underlines Dismal State of Russia's Legal System

By Philip P. Pan
Washington Post Foreign Service
Thursday, August 13, 2009

MOSCOW -- When three of Russia's finest lawyers agreed to represent the investment fund Hermitage Capital, they thought they were taking on a routine tax case.

Then they uncovered evidence of a breathtaking crime: Top police and tax authority officials appeared to have quietly seized ownership of Hermitage firms and used them to arrange a $230 million tax refund.

Now, the lawyers themselves are in legal trouble. One has been jailed. The two others have fled the country. All three face charges that seem intended to discredit Hermitage and divert attention from the enormous theft.

Their plight highlights the hazards of practicing law in Russia's corruption-ridden courts despite nearly two decades of reforms supported by hundreds of millions in U.S. and European aid. Prosecutors and police continue to dominate the judiciary as they did in the Soviet era, but unrestrained by the institutions of the old Communist system or the checks of a genuine democracy, the opportunities for abuse have grown.

No crime illustrates the state of the legal system better than what is known as "reiderstvo," or raiding -- the takeover of businesses through court rulings and other ostensibly legal means with the help of crooked judges or police. The practice is so widespread that local media have reported what raiders charge: $10,000 to alter a corporate registry, $50,000 to open a criminal case, $300,000 for a court order.

Hermitage, once Russia's largest foreign shareholder with more than $4 billion in holdings, says it encountered a bold variation on reiderstvo: When raiders failed to seize its assets, they looted the Russian treasury instead, then went after the lawyers who caught them.

President Dmitry Medvedev, a lawyer himself, has called "legal nihilism" the main obstacle to growth in Russia and has condemned raiding as "shameful." But neither he nor his government has responded to Hermitage's pleas for help or the protests of the Moscow bar association and international legal groups.

In a statement last month, the Interior Ministry touted its success in solving the tax theft. But the money has not been recovered, nor have any officials been arrested. Prosecutors have charged only a convicted killer named on documents as Hermitage's new owner.

Courts in Cohorts

For years, Hermitage targeted corruption in the state enterprises in which it invested. In 2005, it upset someone in power, and its British chief, William Browder, was barred from entering Russia. As a precaution, the fund sold its Russian assets and moved most employees overseas.

Then, in June 2007, police raided its Moscow offices and those of its Moscow-based law firm, Firestone Duncan. Brandishing warrants for material about a Hermitage affiliate suspected of tax evasion, they confiscated much more. When one lawyer objected, police beat him so badly that he was hospitalized for two weeks, said Jamison Firestone, the American head of the law firm.

Three days later, Hermitage hired the prominent Moscow defense lawyer Eduard Khayretdinov.

A taciturn former cop and judge, Khayretdinov, 50, was among a pioneering generation who joined the bar in the early 1990s as lawyers first began to operate independently of the state. It was a hopeful move, he recalled, made as then-President Boris Yeltsin's reformers were trying to build an impartial judiciary.

Nearly two decades later, Russian lawyers are the embodiment of that incomplete task. Some are corrupt middlemen, pulling strings and delivering bribes. Others risk arrest and violence in pursuit of justice. Most try to avoid trouble, though figuring out how is more difficult than ever. If the party once controlled the courts, now the highest bidder often does.

Khayretdinov tried to make a difference. In a nation with a conviction rate near 99 percent -- higher, some say, than under Joseph Stalin -- he managed to win the release of five clients in 15 years. "I understood that our system was getting worse, but every time I prepared to speak in court, I honestly believed the court would hear me," he said.

In October 2007, he discovered that lawsuits had been filed in St. Petersburg against three Hermitage firms that once held shares of Gazprom, the state energy giant. Without telling his client, judges had issued more than $400 million in rulings against the firms.

Photographing each page of the court files, Khayretdinov realized that lawyers representing the firms had essentially pleaded guilty in every case. But Hermitage had never hired them.

In Moscow, Hermitage checked the government's corporate registration database and was astonished to discover that it no longer owned the subsidiaries. A business in Kazan, 400 miles from Moscow, was listed as the proprietor.

Complex Maneuvering

Raiding, a mix of extortion, identity theft and simple thuggery, has emerged as major problem for the Russian economy, where property rights remain clouded by the chaotic privatizations of the 1990s. A U.S. Justice Department official in Moscow has described it as "a new and sophisticated form of organized crime" that "poses a serious threat to foreign investors" and has even spilled into American courts.

In one high-profile case, the Norwegian telecom giant Telenor is battling an attempt to seize its stake in a Russian mobile operator after a Siberian court issued a $2.8 billion ruling against it. But smaller domestic firms are usually the victims. One veteran police official has estimated that as many as 10,000 takeovers occur annually but that fewer than 100 are prosecuted and result in convictions.

Raiding is difficult to investigate because it relies on police and judicial corruption and often involves complex legal maneuvering. Hermitage turned to Sergei Magnitsky, 37, a specialist in tax law at Firestone Duncan who was also a licensed auditor. "The best I ever saw," Firestone said.

To take ownership of the firms, Magnitsky concluded, the thieves would have needed original corporate seals and founding documents -- items that police had seized in the raids.

The lawyers suspected the involvement of Lt. Col. Artem Kveuznetsov, an Interior Ministry official who supervised the raids and had been poking around Hermitage bank accounts. He had no clear link to the lawsuits, but raiders often use criminal cases to smear their victims and obtain key documents.

On Nov. 29, 2007, Hermitage confronted Maj. Pavel Karpov, the officer supervising the tax probe, with its findings. The company says he blanched and motioned one of its attorneys to his desk. Apparently worried that his office was bugged, he typed a message: Kuznetsov had pressured him to open the inquiry.

Kuznetsov and Karpov referred a reporter's queries to the Interior Ministry, which did not respond to faxed questions.

Only one law enforcement agency opened a probe into Hermitage's allegations. But when Magnitsky showed up 10 minutes early for a meeting with its investigator last summer, Kuznetsov was in the office.

Looting the Treasury

Why would anyone go to the trouble of obtaining multimillion-dollar judgments against companies that no longer hold any assets?

The mystery stumped Vladimir Pastukhov, 46, a longtime Hermitage adviser and a law professor at the Higher School of Economics. "No one knew what the crime was, but it was clear that if we didn't immediately argue our case, Hermitage would be blamed for something," he recalled.

He and the others filed a series of court motions. Prosecutors responded by indicting Hermitage executives in absentia and disclosing that the powerful Federal Security Service, the domestic successor to the KGB, had initiated the tax inquiry.

It was Browder, the company's British chief, who first suggested that the raiders might be using the court rulings to erase profits on paper and apply for a huge tax refund. The lawyers were skeptical. Magnitsky noted that it often took years to get a refund in Russia.

But then they discovered that the firms had opened accounts at two banks that reported a spike in deposits afterward. With more digging, they confirmed that $230 million was deposited days after the companies applied for a tax refund. The money quickly disappeared overseas.

When Hermitage reported the fraud in July 2008, police went after the lawyers, summoning them to Kazan.

After speaking to police, Pastukhov concluded that he would be arrested if he went. "I used to believe that if you were persistent and targeted, you could get results, even in the Russian courts," he said after fleeing to London. "But I've changed my mind. I'll never step into another courtroom again as a Russian lawyer."

Khayretdinov was sure he could prove his innocence and hid in Russia for months. But then police accused him of improperly representing the stolen firms because Hermitage no longer owned them. He decided he had no hope in court and flew to London.

Magnitsky never considered leaving because he didn't believe he could be jailed for nothing, colleagues said. But in November, police charged him with helping a Hermitage firm evade taxes in 2001. His attorney said he didn't even begin working with the firm until 2002.

"They've told him that if he says bad things about Hermitage, they'll let him go," Firestone said. "But Sergei told them no. . . . He believes the only way that Russia gets better, the only way the law starts to work here, is if good people stand up for it."

Hepatitis Group Is Harassed in China

By ANDREW JACOBS

BEIJING — In the realm of potential threats to China’s stability, an organization that advocates on behalf of people infected with hepatitis B would seem to be low risk.

But on Wednesday, the group’s director, Lu Jun, found himself squaring off against four security officials who were trying to cart away stacks of literature they claimed had been printed without official permission.

In the end, Mr. Lu scored a partial victory. After eight hours looking through drawers and photographing volunteers, the inspectors walked off with 90 pamphlets, but Mr. Lu prevented them from delving into the group’s computer files. “I fear this is not the end of it,” he said Thursday.

The raid on Mr. Lu’s organization, the Yi Ren Ping Center, comes at a precarious time for China’s nongovernmental organizations, many of which operate in a kind of legal gray zone. Two weeks ago, officials used a bureaucratic infraction as the reason to shut down the country’s pre-eminent legal rights center, Gongmeng, or Open Constitution Initiative. The closing followed a separate disbarment of 53 lawyers known for taking on civil rights and corruption cases. Just before dawn on Wednesday, the founder of Gongmeng, Xu Zhiyong, was taken into police custody, and he has not been heard from since.

“The permissible space in which civil society groups can operate was already small, but right now that circle is getting smaller and smaller,” said Sharon Hom, the executive director of Human Rights in China, which is based in New York. “If an organization is creating an independent voice, putting together a newsletter or organizing people in any way, it’s going to feel the full brunt of the authorities.”

Although it is unclear exactly why the government is tightening its grip on such organizations, legal experts and rights activists generally agree that it may be related to the celebrations, three months from now, of the 60th anniversary of China’s Communist revolution. A similar clampdown took place in the months before the 2008 Summer Olympics, when security officials in Beijing stepped up the harassment of dissidents and encouraged thousands of migrant workers to return to the countryside.

“It’s basically a foolish attempt to make the year as peaceful and uneventful as possible,” said Jiang Tianyong, a lawyer who was among those blocked from renewing their licenses.

Another explanation, Mr. Jiang and others say, is that some powerful segments of China’s leadership feel threatened by the rise of independent entities working to advance causes like labor rights or clean water, or in the case of the Yi Ren Ping Center, protection for people with hepatitis B.

There is widespread trepidation over hepatitis B in China, a fear that has been intensified by an explosion in advertising for medical testing services and sham cures. Even though it is preventable with a vaccine — and most of those infected will not become ill — state-owned companies, medical schools and food-processing plants have come to believe that it is sensible policy to bar the infected.

Under Chinese law, carriers of hepatitis B cannot work as teachers, elevator operators, barbers or supermarket cashiers. In a recent survey of 113 colleges and universities, conducted by the Yi Ren Ping Center, 94 acknowledged that infected applicants, required to take blood tests, would be summarily rejected.

Many of the 120 million carriers in China got the virus in the 1970s and 1980s, when a single contaminated syringe was sometimes used to inoculate hundreds of people at a time against diseases. The second-biggest group of carriers, about 40 percent of the total, according to the government, got the virus from their mothers during childbirth.

An online bulletin board maintained by Mr. Lu’s group is a heart-rending clearinghouse for stories of people fired from jobs, or students denied college educations, after mandatory blood tests revealed their statuses. There are also scores of tales about the ashamed and the distraught who killed themselves.

“People are so afraid of this virus, they don’t act responsibly,” said Wang Li, an engineer who just graduated from a prestigious Beijing university and saw two job offers evaporate this year when blood tests showed that he had the virus. “The only thing they told me was, ‘You are not suitable for work.’ ”

Founded in 2006 by Mr. Lu, who is also infected, the Yi Ren Ping Center provides up-to-date medical information and tries to arrange legal help for those it considers wrongly dismissed from jobs. It also encourages its 300,000 members to press for antidiscrimination laws. Last summer the center was forced to move its Web site to an overseas server after it mysteriously vanished from the Internet.

Although his organization does not seek to challenge the government’s authority, Mr. Lu recognizes that its mission can stir discomfort among the powerful and mighty. “After all, it is these people who are maintaining the status quo of discrimination,” he said in his office on Thursday. “And of course, according to the government, there is no such thing as discrimination in China. There are only misunderstandings.”

Xiyun Yang contributed research.

http://www.nytimes.com/2009/07/31/world/asia/31hepatitis.html?ref=todayspaper

Legal Body to Force Out Elder Judges, Prosecutors

Friday, 31 July 2009 15:03 VONG SOKHENG

But some say their absence could strain the court system.

A total of 27 senior judges, prosecutors and provincial court chiefs are set to retire following a meeting Wednesday of the Supreme Council of the Magistracy (SCM), which has enacted a little-used law mandating compulsory retirement at age 60.

Sam Pracheameanith, Cabinet chief in the Ministry of Justice and assistant secretary general of the SCM, said Wednesday that the retirements would be made official once a royal decree was issued by King Norodom Sihamoni, who chairs the council.

"Retirement is a part of [the government's] judicial reform programme, which aims at improving the judicial services in the Kingdom. It will not affect the current work of the courts," he said.

The Kingdom's 1999 Co-Statute on Civil Servants lists 60 as the mandatory retirement age for all government employees and civil servants, but the law has never been fully implemented for judicial officials.

Sam Pracheameanith said that the nine-member SCM, which includes prosecutors and judges from the Court of Appeal, Supreme Court and Phnom Penh Municipal Court, has also approved 63 graduate judges to undertake internships under the auspices of the SCM.

The SCM, as the Kingdom's chief judicial body, has the power to appoint, replace or disqualify any judge or prosecutor on the grounds of conflict of interest or incapacity.

The forced retirements announced Wednesday have drawn some criticism from legal and civil society observers.

Sok Sam Oeun, executive director of the Cambodian Defenders Project (CDP), said the judges should not have been forced to retire, since the government still claims it lacks the human resources to fully staff the court system.

"My point of view is that the old judges and prosecutors who had a lot of experience would have played a fairer role in bringing justice to society than the young graduate students," he said.

"I think that the government should have allowed the judges and prosecutors to continue their work if they do not want to retire, so that they can work with the young [judges]."

He said that in countries such as Thailand, judges and prosecutors who pass the age of retirement are given dispensations to be able to continue their work.

Hanrot Raken, a retired member of the SCM, reiterated concerns Wednesday that the forced retirement of judges and prosecutors could affect the work of the court system.

"I think that the replacements for the retired judges and prosecutors will not have enough experience to handle their cases ... and trials will lack justice," he said.

Stretched to the limit

Chiv Keng, president of Phnom Penh Municipal Court, told the Post this month that each judge was forced to handle between 600 and 700 cases per year but could only properly handle around 200.

The Appeal Court alone receives roughly 2,000 criminal and civil cases annually, he said.

Chan Saveth, a monitor at local rights NGO Adhoc, said the lack of human resources in the courts meant that individual judges had to handle at least 10 criminal cases per day.

"We are concerned that judges forced to handle 10 cases per day will not be able to ensure that justice is done," he said.

Am Sam Ath, a technical supervisor at the local human rights group Licadho, added that the criminal cases currently being handled by the soon-to-be-retired judges might be delayed or abandoned by the courts in the confusion of the changeover.

But Sam Pracheameanith dismissed those concerns, saying that more than 200 judges are currently being trained, and that the ministry has carefully planned the retirements, spacing the resignations of senior court officials to ensure that the workings of the judiciary are not affected.

http://www.phnompenhpost.com/index.php/2009073127500/National-news/legal-body-to-force-out-elder-judges-prosecutors.html

Struggling for the Rule of Law: The Pakistani Lawyers’ Movement

Daud Munir

(Daud Munir is a doctoral candidate in politics at Princeton University.)

Lawyers protest against the establishment of anti-terrorist courts headed by civil-military judges, February 2, 2002, Lahore. (K. M. Chaudary/AP Photo)

In March 2007, when President (and General) Pervez Musharraf suspended Supreme Court Chief Justice Iftikhar Chaudhry, Pakistani lawyers took to the streets in large numbers. It was a dangerous street where they were met with batons, barbed wire, tear gas, bullets and bombs. If their immediate demand was Chaudhry’s return to the bench, the incipient goal of their movement was restoration and respect for the rule of law. Over the last two years, protesting lawyers fundamentally transformed the political landscape in Pakistan.

Lawyers—at least in their capacity as lawyers—rarely enter the fray of contentious politics by employing disruptive techniques to press for changes in government policy. While lawyers are agents and advocates of political liberalism and the rule of law in most countries, their favored arena of contestation usually has been courts, and their preferred tactics of resistance have been writs and petitions. If we define a “lawyers’ movement” as a coherent nationwide struggle by legal professionals, sustained over time and fought primarily in the streets, Pakistan would emerge as the only case.

The lawyers’ bold challenge to Musharraf presented a unique historical opportunity for meaningful political reform in Pakistan. It certainly presented a counter-image of the idea that Pakistan is a “failed state,” as some US policymakers have claimed, and a contrast to the parallel undemocratic impulse in Pakistan’s politics, led by militant movements of tribal Pashtuns seeking to install a radical version of Islam in the country’s northwest regions. The broader effects of the lawyers’ struggle depend on whether this indigenous democratic impulse can flourish and endure in the post-Musharraf era. The problem is that while western policymakers are ready to extend billions of dollars in military aid to subdue the extremist impulse, they seem unwilling to engage with—or even to adequately acknowledge—the secular, reformist impulse in Pakistani society that is represented by the lawyers’ movement.

A Tale of Two Judges

Following Pakistan’s creation as an independent state in 1947, the project of establishing constitutional governance had an unpromising beginning. In 1954, the Constituent Assembly finally agreed on the governing legal framework. Later that year, as legal experts were busy drafting the text of the constitution, Governor-General Ghulam Muhammad dissolved the Assembly, silencing what he referred to as its “parliamentary bickering.” Proclaiming in an emergency proclamation that the Assembly had “lost the confidence of the people,” what really troubled Muhammad was the imminent curtailment of his powers through new legislation.

The executive enlisted the support of the military in its bid to preserve its power. In a breach of rules barring members of the military from holding political office, General Ayub Khan, the army chief, was appointed as a minister in the newly formed cabinet. This extra-constitutional action formally paved the way for the military’s entry into Pakistan’s politics.

How did the judiciary respond? The Chief Court of Sindh accepted a petition submitted by the president of the Assembly and invalidated the actions of the governor-general. On appeal, however, the Federal Court upheld the legality of the Assembly’s dissolution. A constitutional crisis ensued, which the court resolved by relying on the “doctrine of necessity.” According to this controversial principle, extra-constitutional actions can be legally justified under special circumstances. The man behind this legal maneuver was Chief Justice Muhammad Munir, a brilliant legal mind. His majority opinion which, in essence, validated Pakistan’s first extra-constitutional coup, was a skillful attempt at bending the law in support of the executive. Munir’s ruling endorsing the usurpation of power would prove costly for Pakistan.

In 1958, when General Khan suspended the constitution and imposed the first martial law, Justice Munir authored the leading judgment validating this military coup d’état. This time the legal maneuver involved mislabeling the coup a “revolution” by invoking the speculative theory of “revolutionary legality” developed by the Austrian jurist Hans Kelsen. The court argued that since the “revolution” satisfied “the test of efficacy,” it could thereby be deemed legitimate. In other words, the success of the military coup d’état automatically furnished the justification for its legality.

The jurisprudence of the Munir court set the tone for constitutional reasoning in Pakistan. The doctrine of necessity, in particular, was used repeatedly to legitimate extralegal usurpations of power. Both Generals Zia ul-Haq’s and Pervez Musharraf’s military takeovers, in 1977 and 1999, respectively, were validated using this doctrine. One of the members of the bench who reviewed and endorsed the legality of Musharraf’s military coup d’état in May 2000 was Justice Iftikhar Chaudhry.

When Chaudhry became chief justice in 2005, however, his judicial philosophy underwent a fundamental metamorphosis. Rather than acting as an agent of the power elite, Chaudhry sought to become a guarantor of the fundamental rights of Pakistani citizens. Soon after being sworn in, he established a “human rights cell” in the Supreme Court. Through this forum, Chaudhry started accepting petitions from the public against infringements of constitutionally guaranteed rights. The cases taken up by the court incrementally tightened the noose of legality around the Musharraf regime.

In the first few cases, the court held local town officials accountable for failing to oversee and enforce safety regulations in construction projects. Decisions in another set of cases annulled the leases of two public parks that were handed over to private parties for the development of a mini-golf course and a parking complex. Next in line were cases against corrupt federal ministers involved in illegally controlling the prices of commodities. By successively implicating more powerful state officials, it seemed that Chaudhry was testing the regime’s willingness to tolerate his judicial activism.

There was a paradigmatic shift in the core function of Pakistan’s Supreme Court when decisions started going against senior members of the executive. One of these decisions directly challenged the administrative practices of Prime Minister Shaukat Aziz, who privatized Pakistan Steel Mills, one of the country’s largest public sector enterprises, generating considerable controversy. It was alleged that Aziz, who was also the chair of the Cabinet Committee on Privatization, had agreed to the sale of the corporation at an unduly low price to a consortium he favored. In a landmark judgment, the Chaudhry Court annulled the sale agreement on the grounds that the deal had been done in “indecent haste.”

Soon afterwards, the court shocked the military regime by taking up cases addressing “missing persons.” Under the pretext of the “war on terror,” Musharraf’s security apparatus had forcibly disappeared a large number of political opponents. In an astoundingly bold move, Chief Justice Chaudhry accepted a case involving 41 missing persons. The court upheld the right to due process for extrajudicially detained individuals and ordered the state agencies to produce them in court. This was an extraordinary contra-authoritarian step in the judicial history of Pakistan. Chaudhry’s activism generated immense respect among lawyers and the human rights community, and was widely reported in the burgeoning independent Pakistani media. Emboldened by the positive feedback, Chaudhry accepted another case involving over a hundred forced disappearances on March 8, 2007. The next day would prove fateful for both Chaudhry and the military regime in Pakistan.

Chaudhry’s Suspension

Lawyers of Lahore protest military rule, February 27, 2001, in Lahore. (K. M. Choudary/AP Photo)

Musharraf invited Chaudhry to his official residence. Dressed in military uniform and accompanied by the prime minster and intelligence chiefs, he sought to pressure the chief justice to resign. Chaudhry refused. An infuriated Musharraf forcibly detained Chaudhry for several hours and then suspended him through a presidential order with immediate effect. An acting chief justice was sworn in.

After Chaudhry’s suspension, bar associations in several parts of the country began protesting Musharraf’s action. Three days after the suspension, as the deposed chief justice left his residence to face the Supreme Court bench hearing his case, a police car was waiting to transport him. Chaudhry, however, believed that he was still the rightful chief justice of Pakistan—and certainly not a criminal—and so decided to walk to court rather than ride in the police car. At this point, the security forces pulled him by the hair and forced him into the car. Their actions were captured on film and widely circulated on news channels and reported in the print media.

The insult to one of the highest symbols of the legal profession galvanized even habitually apathetic lawyers. Wearing their black coats, lawyers took to the streets in protests across the country demanding Chaudhry’s reinstatement. Thus began the lawyers’ movement, which continued with a boycott of courts and ongoing demonstrations against the regime. Chaudhry traveled around the country, addressing bar associations in order to help keep the movement animated. The media played a critical role by giving live coverage to the events and by debating the legality of Musharraf’s action.

In July 2007, in the context of public opinion strongly mobilized in favor of the deposed chief justice, the Supreme Court passed a landmark judgment annulling the presidential order and restoring Chaudhry. This was the first judicial ruling in the country’s history directly challenging the action of a military dictator.

The Struggle Continued

The chief justice—restored to his post as a result of countrywide popular mobilization—felt emboldened to take up the case of Musharraf’s eligibility to run for reelection as president while in military uniform. Sensing an imminent court decision against the constitutionality of his bid for reelection, Musharraf imposed emergency rule in November 2007. He suspended sixty judges of the higher courts in Pakistan, including Chief Justice Chaudhry.

Over the next few months, Musharraf’s security apparatus launched an offensive against Pakistan’s civil society, with special vehemence directed at the rebellious legal community. Although many individuals were brutally attacked, the lawyers’ movement continued to press the government for the restoration of the judiciary. The boycott of courts and the climate of instability most likely contributed to a rift within the military over how best to respond and control the mobilization. It certainly was a factor in Musharraf’s decision to extend his hand to Benazir Bhutto, leader of the Pakistan Peoples Party (PPP), to stave the erosion of his own legitimacy. Under an agreement with Musharraf that granted her blanket immunity for pending corruption charges, Bhutto returned to Pakistan in October 2007. In the buildup to a January 2008 parliamentary election, Bhutto, the leading opposition candidate, was assassinated at a rally in Rawalpindi on December 27, 2007.

After being sworn in as president for another five years, Musharraf maintained his refusal to restore the deposed judges. In July 2008, the lawyers’ movement organized the first “long march.” Around 50,000 protesters from around the country converged on the capital. Given the erosion of his power during the last year and mounting opposition to his policies, Musharraf resigned in August.

A few weeks later, Asif Zardari, Bhutto’s widower and co-chair of the PPP, was elected president. One of his campaign promises was to restore the deposed judges. However, several months into his presidency Zardari not only refused to reinstate the judges, but appointed PPP loyalists as judges in higher courts, presumably motivated in part by a desire to curtail corruption cases against him.

The lawyers’ movement had not abated with the end of Musharraf’s rule, and new pressure was directed at Zardari to reinstate the judiciary. The lawyers organized a second long march in March 2009, in which opposition parties officially joined. This time, before the hundreds of thousands of protestors reached the capital, the prime minister announced the restoration of the deposed judges. Chief Justice Chaudhry once again resumed office on March 22, 2009.

Undermining Authoritarianism

Even though “Go Musharraf Go!” had been one of the main slogans of the lawyers, it would be erroneous to think that the movement’s goal was regime change. In retrospect, the single-issue clarity of the movement’s campaign to reinstate the deposed judges arguably made their activism so successful. But the lawyers’ struggle did prove to be a critical factor in undermining Musharraf’s military regime and forcing his resignation. Unlike most other transitions to democracy in which the principal agents of change have been a country’s political elites, in Pakistan it was mobilization by the legal community that paved the way.

To understand how middle class professionals could upend a military regime as powerful as Musharraf’s, it is important to specify the nature of the Pakistan lawyers’ movement. For one thing, it was not confined to any particular geographical region; lawyers from across the country were actively involved, with Lahore and Karachi registering the highest turnouts at protests. The movement was not dominated by any single ethnic or sectarian group, thus giving it a truly national complexion. And it was not a façade for political party activism, although parties occasionally participated—especially at key events. This movement was initiated, organized and sustained by Pakistani legal professionals who waged their struggle mainly in the streets.

Lawyers put their safety and freedom at risk, given Pakistan’s history of political violence and regime repression. Thousands were arrested, illegally detained, beaten up and tear-gassed. There were at least two violent events during which more than 50 died. The Musharraf regime had used the draconian Anti-Terrorism Act to detain several lawyers, and amended the Army Act of 1952 to allow civilians to be tried in military courts for vague offenses such as “giving statements conducive to public mischief.”

The erosion of regime legitimacy is rarely sufficient to oust a dictator. What is needed—and what the Pakistani lawyers’ movement provided—was the infliction of tangible costs. By acting as a judicial support network, lawyers propelled the regime into constitutional crises. In many countries, authoritarian regime destabilization is the result of an economic crisis. In Pakistan, the crisis of governability arose first in the legal realm. The mobilization of public opinion in support of the deposed judges, arguably, was critical in the decision of the Supreme Court to annul the presidential order. After the judiciary was restored, the lawyers pressed them to take up the case of Musharraf’s eligibility to run for reelection, propelling the regime into a second crisis.

Lawyers’ boycotts of normal court proceedings threatened the workings of the entire judicial system. The public did not blame the lawyers, but rather the regime, for the consequences of the boycott. And since the lawyers mobilized in the streets rather than merely staying home, they baited the regime, which responded with violent repression. This exacted immense reputational costs both at home and internationally, given the extensive live coverage of protest events by the media. The regime’s destruction of media company offices and passage of censorship laws backfired, further inflaming anti-regime sentiment. The regime also used tactics such as arranging counter-demonstrations by fake lawyers and organizing a national rally in support of Musharraf. Such obvious desperation both exacerbated and illustrated the regime’s loss of power.

Finally, the event that most forcefully proved the cost inflicted by the lawyers’ movement was the regime’s imposition of emergency rule. This was a clear instance of the diversion of the regime’s energies to fighting civil society rather than focusing on important policy issues or confronting the growing threat of Islamist militancy in Pakistan.

A New Vocabulary of Politics

Beyond achieving the restoration of the judges to the bench and eroding the jurisprudential foundations of authoritarianism, the lawyers’ movement has had a deeper structural impact on democratic politics in Pakistan. Historically, party politics has relied on three kinds of allegiances to mobilize people: ethnic, religious and clientelistic. Even a relatively populist leader like Zulfiqar Bhutto, who claimed to champion the dispossessed, offered (clientelistic) “bread, cloth and shelter.” Until the lawyers’ movement, no one had offered “rule of law” to the people.

The political dynamic between Pakistan’s political parties and the lawyers’ movement presents a fascinating example of the potential of civil society in newly democratizing countries. Rather than engaging in partisan politics, the lawyers chose to engage in direct mobilization through the bar. This professional autonomy prevented the movement from being subsumed or manipulated by party politics. Conversely, the political parties tried hard to forge an association with the lawyers’ movement, given its success at mobilization and broad-based legitimacy.

The lawyers’ movement became the principal conduit for democratic change in the political arena. Parties that sought to gain leverage by aligning with the movement had to pay the price of structuring their platforms according to lawyers’ demands for rule of law. The case of the PPP is illustrative. It initially appropriated the movement to gain access to the political space in Pakistan by promising to restore the judges. But after Zardari failed to honor this PPP campaign promise, the strong public opinion mobilized by the lawyers’ movement began adversely affecting his party. Realizing this, Nawaz Sharif’s Pakistan Muslim League threw its force behind the movement, gaining considerable legitimacy as a result.

The lawyers’ movement had an impact not only on traditionally clientelistic parties, but also on Islamist parties that historically have mobilized supporters for the implementation of shari‘a law in Pakistan. The Jamaat-e-Islami was one of the parties most actively engaged with the lawyers’ movement, despite the latter’s aim of strengthening the secular legal system in the country. (For Jamaat, siding with the lawyers was a means of expressing opposition to Musharraf.) As political parties appropriated the movement, they were forced to employ a variant of universalistic liberal legal rhetoric that cut across ethnic, religious or clientelistic claims.

Building the Rule of Law

In Pakistan, interludes of democratic rule have brought only nominal improvements in the lives of citizens. As in other emerging democracies, hopes that courts would protect citizens’ fundamental rights are often derailed when the judiciary proves unable or unwilling to check the power of the regime or elites. Recent events in Pakistan, however, provide an interesting case of courts’ efforts to protect rights and build the rule of law at the expense of power elites.

Support for domestic legal reform from multilateral and foreign institutions such as the World Bank, Asian Development Bank and USAID typically envisions a formalistic legal environment and espouses a model divorced from—or at least not tailored to—the social and political forces in the target country. The international record of trying to transplant a one-size-fits-all model of legal reform is unimpressive, not least because it ignores the fact that law is inherently and fundamentally political. The most successful examples of rule of law-building are found in countries where local actors and institutions direct the reforms in ways that accommodate local norms of legal legitimacy.

The two-year struggle of the legal community for upholding the rule of law in Pakistan can be thought of as a political project aimed at legal reform. In contrast to legal reform programs of multilateral institutions, this project was not implemented in a top-down manner. Rather, it was an indigenous project, deeply embedded in the country’s social and political context. Rather than focusing on strengthening the judicial machinery, the lawyers’ movement engaged in rule of law-supporting activism through street protests and court boycotts. In the end, it accomplished something that formalistic legal development by multilateral institutions arguably cannot: the widespread legitimacy of judicial institutions among the citizens of Pakistan.

Given this strong impulse for reform in Pakistan, it seems odd that the country has often been labeled as the “most dangerous place in the world” in the western press. This characterization builds on an exclusive focus on radical movements in Pakistan’s northwest. Given its scope and breadth, however, the lawyers’ movement is arguably more representative of the political aspirations of Pakistanis than is Talibanization. An exclusive focus on the latter, however, by the international community may tilt the balance in the opposite direction.