Wed Nov 7, 2007 by Anil Kalhan
“Emergency” as Institution Laundering (Dorf on Law)
Why insisting upon elections is not enough
(Posted at Dorf on Law)
As the “
emergency” extraconstitutional martial law regime of Pakistani dictator Pervez Musharraf enters its fifth day, more people in the United States have started to react. Most of these reactions — whether forceful, equivocal, or barely audible — have emphasized the importance, above all else, of making sure that the elections scheduled for January stay on track. But what happens when Musharraf and his banker-henchman-in-chief, Shaukat Aziz, lift the emergency and announce a date for elections, as they invariably will? Will critics then breathe a sigh of relief, celebrate the “restoration of Pakistan’s progress towards democracy,” and move on?
If so, then all of these Western critics will have been hoodwinked, and Musharraf will have achieved a near-complete victory. The purpose of Musharraf’s extraconstitutional move to hold the constitution “in abeyance” is not to prevent elections from ever taking place, or even necessarily to delay them at all. Rather, the point of Musharraf’s imposition of martial law is a more thoroughgoing “laundering” of Pakistan’s civil society institutions — including the judiciary, media, and mainstream political parties — in order to flush out any capacity they might have to serve as independent checks on his power. By itself, simply urging Musharraf to hold elections on schedule — or in the case of the Bush administration, gently suggesting that Musharraf think about that possibility if he’s bored and there’s nothing good to watch on television — is relatively meaningless. After all, when it comes to rigging elections, Musharraf has an enviable track record. Indeed, at least nominally even the current, outgoing national and provincial assemblies in Pakistan themselves were “elected.” And of course, strong civil society institutions would not be any less important after the election of civilian leaders.
The [Provisional Constitutional Order] ensured that the best, most qualified judges of the Supreme Court and the High Courts were removed from their posts and placed under house arrest, but not before a final act of defiance that declared the PCO as illegal and unconstitutional. The few remaining members of the superior judiciary, who chose (or were pressured) to take a new oath under the PCO, have lost all legitimacy and are facing a boycott from lawyers. However, as a lawyer friend perceptively pointed out, the real threat comes from the new class of politically opportunist and ill-trained judges who will now be inducted en masse into the superior judiciary based on their loyalties to the ruling coalition. The consequences of this move are far-reaching and will affect a whole generation, though we are already beginning to see some indications. A small news item in today’s papers mentions a district judge in Sukkur who received a dismissal notice on Monday from the Sindh High Court immediately after issuing a show cause notice to an SHO (police official). The message is clear: courts are no longer empowered to question or interfere with the functioning of any executive agency. [via CM]
A more meaningful response, reflected, for example, in the statement issued today by the New York City Bar Association, would insist upon the full restoration of the rule of law as it had been emerging rather forcefully before the events of November 3. (Of course, this being a “coup within a coup,” an even stronger response would insist upon restoring the Constitution as it existed before the events of October 12, 1999, as called for by the Charter of Democracy. But let’s take things one step at a time.) That means adhering to the Pakistan Supreme Court’s unprecedented ruling (click on the image to the right for its text) that Musharraf’s extraconstitutional decrees are unlawful and that anyone who acts to implement them is, at minimum, punishable for contempt of court. (Initially, Musharraf’s “pocket judges,” as opposition leader Imran Khan calls them in the above video, tried to deny that the Supreme Court had issued any such ruling at all. However, once the Court’s order had been printed in newspapers and circulated all over the planet, the Pocket Court fashioned a new claim: that the order was a nullity because the justices who refused to swear new oaths of allegiance were no longer, in fact, judges at all. Watch this short video to see Shaukat Aziz coolly holding forth — mostly in English, so clearly for Western consumption — on the Alice-in-Wonderland-like legal principles underlying Musharraf’s extraconstitutionalism.) It also means insisting upon reinstatement of the many judges who courageously have refused to violate their current oaths of office by taking new oaths of allegiance to Musharraf’s martial law regime and, in most cases, have been thanked for their trouble with house arrest.
Critics who emphasize the importance of holding elections are by no means wrong to do so. After all, free and fair elections are critically important to the restoration of democracy and civilian rule in Pakistan. But to focus exclusively on delayed elections as the primary harm arising from Musharraf’s imposition of martial law seems manifestly to miss the point. Critics inclined to do so should be careful what they wish for — or more to the point, they should be careful not to wish for too little.
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Meanwhile, the Bush administration has continued to respond forcefully and with an enormous sense of outrage and concern. A senior State Department official today escalated the Administration’s rhetoric, blasting Musharraf as “indispensable.”