+UST BEFORE MIDNIGHT ON
November 3, President Pervez Musharraf went on television and declared a state of emergency in Pakistan. “My dear brothers and sisters,”
he said, “[our nation] stands at a dangerous crossroads.” Terrorism and extremism are ripping the country apart, he said,
but there is a far more fundamental and immediate threat: lawyers and judges. Thousands
of people have brought actions challenging the
legality of police and military actions, he said,
and the law enforcement agencies were “
demoralized” as a result. The only solution was
for the general to assume total authority.
And then the general switched from his
native Urdu to English. His closing remarks
were intended not for his fellow citizens but
“to our friends in the United States.” He told
his audience that he was inspired by Abraham
Lincoln to assume dictatorial powers and declare emergency rule. He quoted Lincoln’s
1864 question: “Was it possible to lose the nation and yet preserve the Constitution?”
There is something rattling about a foreign
military leader assuming dictatorial power and
quoting Abraham Lincoln as his inspiration for
doing so. But even more troubling is the notion that lawyers and judges, just doing their
Pervez Musharraf of Pakistan claims to be drawing inspiration
from Abraham Lincoln, but his actions are sending lawyers
into the streets to protest.
By Scott Horton
work, administering and enforcing the law,
undermine the power and authority of the
state and advance the interests of terrorists.
Within days of the speech, two-thirds of the
nation’s judges, including the entire Supreme
Court of Pakistan, were under house arrest. At
least 400 lawyers had also been arrested.
Pakistan’s legal profession had been struggling with the general for months before that
speech, ever since Musharraf had removed
the nation’s popular chief justice, Iftikhar
Chaudhry, the previous spring. The lawyers
rightly saw the move as a frontal attack on the
nation’s legal system.
And so they did something uncharacteristic for lawyers. A few weeks later, hundreds
of lawyers, along with Chaudhry and other
judges, took to the streets to protest. On The
Daily Show, Jon Stewart showed clips of lawyers in dark suits and white shirts marching,
chanting, throwing the occasional stone, and
being beaten by the police. It was natural fodder for Stewart; there is something a little
absurd about crowds of judges and lawyers
engaged in violent protest. Shouldn’t they be
in their offices writing strongly worded amicus briefs instead?
The Bush administration hasn’t exactly
sided with the lawyers, but it has pressed Musharraf to make some concessions to his democratic critics. Under Condoleezza Rice, the
U.S. Department of State has pushed Musharraf to broaden his government by bringing in
one of the centrist Pakistani political parties.
And it urged Musharraf to take off his military
uniform before being sworn in for a new term
as president in mid-November.
Ironically, Musharraf has rebuffed this
message, in part with the Bush administration’s own language. Musharraf’s policy appears to be a rehashing of a concept called
“lawfare,” a poor play on “warfare” that has
fairly innocuous origins among American
defense analysts starting in 2001. The idea,
however, quickly developed into something
more virulent under President George W.
Bush. The most formal statement of the
lawfare idea came in a Pentagon statement in
March 2005: “Our strength as a nation state
will continue to be challenged by those who
employ a strategy of the weak using international fora, judicial processes, and terrorism.”
By equating law to terrorism, the lawfare doctrine challenged basic notions of the rule of
law. On that night in November, Musharraf
quoted that rhetoric right back to the Bush
administration. In the wrong hands, the dictator seemed to be saying, the rule of law can
be wielded like a weapon.
In recent weeks, the lawyers and their
allies have faced a number of reversals, but
they have also gained some ground. Still, it’s
hard to imagine how the country will move
toward stability without commitment to the
rule of law. The legacy of America’s greatest
president tells us so.
Scott Horton lectures at Columbia Law School,
works on military contractor issues for Human
Rights First, and is on the board of the National
Institute of Military Justice.