Copyrighted material


by Anil Kalhan

on Musharraf's martial law

(PNS) -- Most of the reactions to the imposition of martial law in Pakistan have emphasized the importance, above all else, of making sure that the elections scheduled for January stay on track. Now Pervez Musharraf has announced he will hold parliamentary elections by February 15. Will his critics now 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. As Musharraf's announcement makes clear the purpose of his extraconstitutional move to hold the constitution "in abeyance" was not to prevent elections from ever taking place, or even necessarily to delay them very long. Rather, the point of Musharraf's imposition of martial law has been 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.

Permitting Musharraf to succeed in his effort to launder the Pakistan judiciary could have far-reaching consequences, as this dispatch from Karachi, on the site suggests: 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 opportunistic 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.

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 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 called them in a videotaped message recorded while in hiding, 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. This claim was articulated during a Sunday press conference held by Pakistani Prime Minister Shaukat Aziz who coolly held forth -- mostly in English, so clearly for Western consumption -- on the Alice-in-Wonderland-like legal principles underlying Musharraf's extraconstitutionalism.

A more robust response also would insist 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 arrest. And of course, even though Musharraf has now scheduled elections, many leading Pakistani lawyers remain in detention. Some of these lawyers -- including Muneer A Malik, Aitzaz Ahsan, Tariq Mahmood and Ali Ahmed Kurd, all distinguished lawyers and leaders at the highest level of the Pakistani bar -- are being held incommunicado or in undisclosed locations and are feared to be subject to torture at the hands of military intelligence officials.

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.

Anil Kalhan is visiting assistant professor of law at Fordham Law School in New York and a contributing writer for Dorf on Law and AsiaMedia

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Albion Monitor   November 8, 2007   (

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