Tuesday, April 1, 2008

The Law in Pakistan

Agence France Presse photo of demonstrations in Lahore on Nov. 5, 2007

"The first thing we do, let's kill all the lawyers." -- William Shakespeare, King Henry VI, Part II, Act IV, Scene II

It has been noted that the American Revolution was not so much like the other famous revolutions that followed it. The great slogan representing the great grievance was "No taxation without representation!" Compare that to the "Liberty, Equality, Fraternity!" of the French, the "Peace, Bread, and Land!" of the Russian, and the "Serve the People!" of the Chinese Revolutions, and you might think it's a tad tepid. Legalistic, even, for a revolution.

This might make more sense when you remember that a great deal of the founding fathers were lawyers. Of the 55 delegates to the Consitutional Convention in 1787, 35--63%--were either practicing lawyers or had received a legal education.(1) The author of the Declaration of Independence, Thomas Jefferson, was a lawyer as well as a farmer prior to the Revolution itself.(2) James Madison(3), Alexander Hamilton(4), and none other than John Adams(5) were all lawyers before the revolution. Four of the first five presidents of the United States of America were lawyers. Their complaint with King George III was to a large extent with his refusal to grant them the same rights under the law that all Englishmen were supposed to have.

The early Americans were considered by their contemporaries to be an especially litigious people, a feature that Tocqueville remarked upon.(6) It is said they were, in fact, even more litigious than we are today--though I'm unsure how that could be determined with any certainty.(7) Either way, it is clear that the notion of law, and its spirit, have been extraordinarily important to the West and its development for at least two milennia--it is a fundamental theological precept in Christianity.(8) Indeed, the entire modern apparatus of legal thinking and procedure comes in great part from the canon law of the middle ages, starting with the establishment of the first law school in Bologna, ca. 1088 AD.(9)

And this is the context behind Shakespeare's quote--the rebel Dick the Butcher is saying that once they have overthrown the king, the first thing they need to do is off all the lawyers. Why? Because lawyers are invested in the established system, but more: the bread and butter of the lawyer is his knowledge of the rights of the people--or the aristocracy in Shakespeare's case. And this is why de Tocqueville thought that the high esteem that lawyers were held in in the United States was our greatest protection against the tyranny of the majority:
IN visiting the Americans and studying their laws, we perceive that the authority they have entrusted to members of the legal profession, and the influence; that these individuals exercise in the government, are the most powerful existing security against the excesses of democracy.(10)

So it was with interest that I read recently that there was a protest in December of last year led by the American Bar Association expressing their "solidarity with the Pakistani bar and bench."(11) It's not often that you see a pack of lawyers out there protesting this or that or expressing solidarity with anyone--outside of their clients.

What is going on in Pakistan that a bunch of American lawyers would hit the streets in solidarity with their "bar and bench?"

Probably one of the most extraordinary political events in recent history.


On March 9, 2007, President and Chief of the Army Staff, Pervez Musharraf summarily dismissed the Chief Justice of the Pakistani Supreme Court Iftikar Chaudhry for unspecified charges of misconduct.(12) There are competing theories as to why Musharraf decided to have the Chief Justice sacked--he either got himself into trouble with the government because he decided that security agencies had to account for people who had disappeared while in detention and his apparent unreliability when it came to constitutional decisions regarding upcoming elections(13) or that he found himself in a scandal driven by a television personality where the Chief Justice was accused of doing favors and violating judicial norms and practices(14) or maybe a mixture of both. Either way, his dismissal quickly became a rallying point around which large numbers of lawyers found themselves protesting in the streets of cities across Pakistan.

On May 7, 2007, the Supreme Court suspended a tribunal convened to investigate the charges against the Chief Justice, ruling that a full bench of justices was required to adjudicate Chaudhry's petition challenging the tribunal's jurisdiction. By the middle of that month, 40 people had been killed in clashes between supporters of Chaudhry and pro-government activists after he had tried to meet with opposition leaders, and on the 15th the Supreme Court began to examine Chaudhry's petition. On May 26, 3,000 poeple marched through Islamabad in support of Chaudhry where he was scheduled to deliver a lecture on the separation of powers.(15)

On July 20, 2007, the Supreme Court ruled ten to three that the charges against Chaudhry should be dropped and reinstated the judge, deeming the suspension illegal.(16) By now Chief Justice Chaudhry had become the rallying point of the anti-Musharraf movement in Pakistan. Chaudhry's lawyer was quoted by the BBC as saying, "He [the Chief Justice] has been restored and it is a victory for the entire nation."(17)

In September, the Pakistani Supreme Court heard a number of petitions challenging Musharraf's right to run for reelection to the Presidency, arguing that it was unconstitutional for him do so while he was also Army Chief of Staff. However, on September 28, the Supreme Court--under Chief Justice Chaudhry--ruled that he was eligible to do so because the Parliament had passed a law making it legal up until November 15, 2007, the end of his current term.(18) Musharraf's lawyers argued that he would step down as Army Chief of Staff once he was signed in as President.(19)

On October 6, 2007, Musharraf was re-elected President by a landslide, but controversially so not only because of the constitutional issues at stake, but because he had prevented popular opposition leaders--Benazir Bhutto and Nawaz Sharif--from taking part in the contest, which had led to a general boycott of the election.(20) The Supreme Court was immediately sent pleas to hear arguments contesting the legality of the elections--and set as a time to meet November 12th, due to personal obligations of one of the members of its bench.(21)

This proved impolitic, as the Supreme Court was then exposed to the criticism that it was adding to the instability of the country by delaying its decision on the elections for so long. So on November 2, the court decided to begin hearing arguments the following Monday, or November 5th. Also on November 2nd, a barrister submitted an application asking that the government be prevented from imposing martial law in Pakistan. The next day the Supreme Court granted a stay order.(22) Later that day, Musharraf, in his capacity as Army Chief of Staff, did just that, suspending the Constitution, issued a provisional constituion in its stead, declared a media black out, and fired all 17 members of the Pakistani Supreme Court. Many of them were placed under house arrest.(23)

As you might imagine, this didn't go down well with the legal community in Pakistan.

On November 5th, 2,000 lawyers, in suits and ties, demonstrated in the streets outside the high (regional) court in Lahore. Apparently lawyers threw rocks at the police and the police picked them up and threw them right back.(24) By that time about 2,000 people had been rounded up and placed under arrest, including about 600-700 lawyers, or 30-35% of the total.(25) On the same day, the Pakistani legal community called for strikes, and by the middle of the month, opposition leaders claimed that as much as 90% were boycotting the courts.(26) The government tried to begin to repopulate the courts with loyal judges, but around 60 judges--including 15 of the 17 Supreme Court Justices--refused to take oaths under the provisional constitution, which prevented, among other things, judges from ruling against members of the government, even if found guilty.(27) On November 11, Chaundhry called on lawyers across the nation to protest the imposition of martial law, and they did. On November 22, the Supreme Court which had been packed by Musharraf unsuprisingly dismissed all the cases challenging the legitimacy of Musharraf's election.(28)On November 28th, Musharraf resigned as Army Chief of Staff and was signed in as President on the next day.(29)

Unrest continued, but on December 15, martial law was lifted, although most of those detained and under house arrest remained so. However, on December 27, Benazir Bhutto, who had returned to Pakistan from exile in late October to campaign in the parliamentary elections, was assassinated. Al Qaeda leader Mustafa Abu al-Yazid reportedly claimed responsibility for the murder that day, though it is not sure who was ultimately responsible at this time.(30) Pakistan erupted into riots and protests calling for Musharraf's resignation. Pakistani general elections were postponed from January 8 to February 18, 2008.(31)

Opposition parties trounced pro-Musharraf candidates in the general elections. On March 9, 2008, the anniversary of the first ousting of Chief Justice Chaudhry, lawyers began a week-long strike nationwide, protesting the detention of the Supreme Court justices.(32) That week opposition leaders in Parliament vowed to free and reinstate the judges within 30 days.(33) On March 24, the new prime minister, Yousaf Raza Gillani formally freed all the detained justices.(34) As of today, they have not been reinstated, but that has been the promise of the opposition parties now in firm control of the Parliament, and if they do so--and not to would look very bad--the newly reinstated Supreme Court may well rule that Musharraf was not legally elected President in October, setting the stage for another show-down.


That's the gist of what has been taking place in Pakistan over the last year, though it's much more complicated than that. What is so interesting to me is how much emphasis the political arena puts upon judicial process. It seems clear that the judiciary is a genuine force in the political landscape in that country, and that even Musharraf cannot afford to ignore the role it plays in the legitimization of the government. If he seeks to undermine it, he seeks to undermine an important source of his legitimacy.

But it is more than that: a great portion of the complaint with Musharraf is constitutional, and put in legal terms. Musharraf's legitimacy is in dispute because he sought to be reelected President while both President and Army Chief of Staff. This was made possible by a temporary law passed by Parliament, but contrary to the Constitution. He sought to impose martial law in direct contradiction to an order--in response to a petition by a barrister--by the Supreme Court stipulating that it was illegal to do so. Article 232 of the Pakistani Constitution does allow the imposition of martial law by the President in certain extreme circumstances, but since he did so as Army Chief of Staff, it therefore not constitutional and not subject to the traditional limits set out therein.(35) Why issue a "provisional" constitution when declaring martial law and suspend the actual constitution, unless the illusion, at least, of a rules based society is important to the success of your political act? When Chaundhry was summarily removed from his seat in March 2007, no less than 23 constitutional petitions were filed with the Supreme Court challenging the act.(36)

Why would people seek redress with the Supreme Court if they didn't feel they had any chance of success? Although there's political value in making public your grievances through petitions, it is unlikely that so much ink and blood would have been spilt if the legitimacy and independence of the Supreme Court and the judiciary in general was not widely accepted and respected.

And, in fact, there are quite a few lawyers in Pakistan. The Washington Post reports a number as low as 80,000(37); Advocates International gives 120,000.(38) The CIA's World Factbook gives a population of Pakistan of about 165 million.(39) That yields a lawyer per capita of aprroximately one per 2,065 to one per 1,375. This number is complicated by the fact that Pakistan follows the English legal system and thus has barristers and solicitors and it's not clear if both are considered when compiling these data. I think the higher number is more likely.

As a comparison, the United States has an estimated one lawyer per 265 people. The UK has about one lawyer per 401 people. France has about one lawyer per 1,403 people.(40) It seems to me that the number of lawyers per capita is a good indicator of whether or not a society is based on the rule of law. If legal decisions were made primarily on the basis of who one knows or how much money one has available for bribes, then there would be little practical reason to become a lawyer unless you were already a member of the ruling clique. In an emerging nation like Pakistan, the legal profession would not be a practical choice for someone trying to climb out of poverty unless there was some rule of law. And the numbers suggest that it is a profession aspired to by the poor in Pakistan.

It turns out that the legal profession has from the beginning held a place of esteem in Pakistan. The founder of the country--Muhammad Ali Jinnah--was a lawyer, and partition came in part because of a series of legal arguments he authored about how it should take place. In the 1950's and early 1960's, the legal community spearheaded opposition to the military rule of the time, calling for rule of law and an independent judiciary. In the late 60s, it was the support of lawyers that gave added momentum to the movement which ousted the first military ruler.(41)

But, in fact, the peoples of Pakistan have a much older tradition of respect for legal institutions than that. The current legal system in Pakistan is based on the English common law system, just like the United States, as well as Islamic Law. The common law is more pertinent when it comes to commercial matters; Islamic Law is more pertinent to personal matters.(42) When the area now know as Pakistan was a British colony, the area was ruled under British common law. Prior to that, the traditional legal system was Islamic, dating back to around 900 AD.

And here's the rub: despite all of our difficulties with the Islamic world during the last decade, Islam is just as obsessed with the question of what is the law as Christianity has been, if not more so. In a speech to visiting Christian scholars, the Ayatolla Khamanei--Supreme Leader (Jurist) of Iran--put it this way:

"Your Prophet [Jesus] struggled for justice during his entire life, and our Prophet also spent his whole life trying to administer justice..."(43)

In Islam, the notion of "Law" is so central that the key function of the higher clergy is jurisprudence. There are five schools of jurisprudence to which most Islamic clerics--or ulema--are attached.(44) The Islamic cleric is in some fundamental way a jurist--often a preacher, too, but someone who in essence adjudicates. It has even been suggested that the English common law owes some of its features to medieval Islamic Law given the Norman conquest of Sicily and the Crusades.(45)

In any case, it seems clear that in Pakistan--as in all Muslim nations--the rule of law has strong cultural and religious underpinnings.


I think it is very likely that the Supreme Court justices summarily dismissed by Musharraf will be resinstated soon. But that does not necessarily mean the end of Musharraf. After all, Chief Justice Chaudhry already ruled on September 28, 2007 that his candidacy for the Presidency was legal.

But it does not seem that Musharraf can really create a pure military dictatorship in Pakistan, and that it is becoming increasingly difficult for anyone to pull off such a feat. It could be possible via brute force--as always--but it seems unlikely that such a government would be regarded as legitimate by many of the people unless there was a dire crisis underway (which is the Constitution's requirement in the first place).(46)

American support for Musharraf has not helped our reputation with the people of Pakistan. Since the Pew Foundation started doing surveys there in 1999, favorable opinions of the United States have never accounted for more than 27% of the population. That was in 2006. In 2007 Pew reported that 15% of the population had a favorable view of the United States.(47) It probably didn't help that the adminstration sent John Negroponte and Richard Boucher over to reach out on the day that the new Prime Minister was signed in.(48) Obviously they were dispatched to establish ties with the new government, but many saw it as an attempt to meddle in the internal affairs of Pakistan just as the government was forming.

Either way, I don't think it has been a mistake of the American foreign policy establishment to make ties with Pakistan a centerpiece of our strategy in South Asia and the Middle East. The national language of Pakistan is English--all of their laws are written in English.(49) As I pointed out above, English common law is the basis of their legal system, and the independence of their judiciary as well as the notion of a rules-based system is especially important to their polity. Some of their geopolitical concerns--Iran, Afghanistan, China, and energy imports--have much the same emphasis as ours. There are problems with our wholehearted support of Musharraf, yet it seems possible to wean American policy off him.

I have, therefore a much more sanguine view of the possibilities of US cooperation with Pakistan going forward than I usually hear in the press and in casual conversations. I believe it has been a big mistake of the US State Department not to issue some statement in support of Chief Justice Chaudhry, or at least strong support for the independence of the judiciary in Pakistan.(50) American support for the judiciary there could create large dividends over time. This is especially true of our conflict with the more radical elements of Islam--if we establish a reputation of being supporters of rules based societies, and shore them up, I believe that would encourage moderate experts in Islam to make their case more public. In the case of Pakistan, this wouldn't be a scenario where we were inventing facts on the ground, but making good use of them.

This may become more useful to us over time in the region as a whole. There are as many as 5 million Indian expats in the Gulf Region.(51) I would guess there are between 2.5-3 million Pakistani expats as well.(52) All of them are for the most part disenfranchised. If energy prices stay high, these numbers are likely to stay high or even grow. Concerns over their treatment, the lack of an independent judiciary, and the rule of law in those areas could create, under the right conditions, national feeling in Pakistan which would ally more closely with that of our own. It does not appear to me--despite all the rhetoric of supporting democracy abroad--that US policy has been designed to ride any of these deep currents over time.

(1) Wikipedia article on the Founding Fathers of the United States.
(2) Wikipedia article on Thomas Jefferson.
(3) Wikipedia article on James Madison.
(4) Wikipedia article on Alexander Hamilton.
(5) Wikipedia article on John Adams.
(6) Law, Lawyers, the Court, and Catholicism, Richard Garnett, Lilly Endowment Association Professor of Law, University of Notre Dame, January 31, 2007
(7) Building the Rule of Law, Wash Park Prophet blog, by Andrew Oh-Willeke, August 14, 2007
(8) see Luke Chapters 11-14, for example
(9) see Law and Revolution: The Formation of the Western Legal Tradition, Harold Berman, Harvard University Press, 1983.
(10) Democracy in America, Alexis de Tocqueville, Book 1, Chapter 16, 1835, the Henry Reeve Translation, 1899, electronic edition deposited and marked-up by ASGRP, the American Studies Programs at the University of Virginia, June 1, 1997.
(11) "Gathering Facts: ABA to check U.S. and other countries for rule of law", by James Podgers, ABA Journal, March 2008
(12) "Supporters of Pakistan's suspended judge march", by Augustine Anthony, Reuters, May 26, 2007.
(13) "Supporters of Pakistan's suspended judge march", by Augustine Anthony, Reuters, May 26, 2007.
(14) "CJ suspended, escorted home: • Justice Iftikhar summoned by SJC on 13th for reference hearing • Ex-judges call it a blow to judiciary’s independence; minister defends decision • Whither judicial activism?," by Nasir Iqbal, Dawn (a Pakistani newspaper), March 10, 2007
(15) "Supporters of Pakistan's suspended judge march", by Augustine Anthony, Reuters, May 26, 2007.
(16) "Pakistan's top judge reinstated," BBC News, July 20, 2007
(17) "Pakistan's top judge reinstated," BBC News, July 20, 2007
(18) "6 including Musharraf eligible to contest Pak Presidential Election," People's Daily Online (a Pakistani paper), September 29, 2007
(19) "Musharraf in court poll victory," BBC News, September 28, 2007
(20) "Pakistani presidential election, 2007," Wikipedia article
(21) "2007 Pakistani state of emergency," Wikipedia article
(22) "2007 Pakistani state of emergency," Wikipedia article
(23) "Pakistan Attempts to Crush Protests by Lawyers," by Jane Perlez and David Rohde, New York Times, November 6, 2007
(24) "Thousands Protest Emergency Rule in Pakistan," PBS NewsHour, interviews and analysis with Lindsey Hilsum, ITV News Correspondent, November 5, 2007
(25) "Pakistan Attempts to Crush Protests by Lawyers," by Jane Perlez and David Rohde, New York Times, November 6, 2007
(26) "Pakistan's Lawyers On the Front Lines Court Boycotts, Protest Marches Underscore Anger Over Musharraf's Emergency Rule, Firing of Judges," by Pamela Constable, Washington Post, November 19, 2007
(27) "2007 Pakistani state of emergency," Wikipedia article
(28) "Court upholds Musharraf election," BBC News, November 22, 2007
(29) "2007 Pakistani state of emergency," Wikipedia article
(30) "Assassination of Benazir Bhutto," Wikipedia article
(31) "2007 Pakistani state of emergency," Wikipedia
(32) "Pakistani lawyers on week-long protest," Islamic Republic News Agency (Iranian newspaper), March 9, 2008
(33) "Pakistani Parliament opens with a power shift," International Herald Tribune article credited to Reuters and the Associated Press, March 17, 2008
(34) "Pakistan's new prime minister frees detained judges," by Salman Masood, International Herald Tribune, March 24, 2008
(35) "The Lawyers' Movement in Pakistan: Law Beyond Politics," p. 14, by Ali Khan, December 26, 2007
(36) "The Lawyers' Movement in Pakistan: Law Beyond Politics," p. 5, by Ali Khan, December 26, 2007
(37) "Pakistan's Lawyers On the Front Lines Court Boycotts, Protest Marches Underscore Anger Over Musharraf's Emergency Rule, Firing of Judges," by Pamela Constable, Washington Post, November 19, 2007
(38) According to Advocates International, there are about 120,000 lawyers in Pakistan.
(39) The CIA - World Factbook - Pakistan
(40) http://wiki.answers.com/Q/What_country_in_the_world_has_most_lawyers_per_capita
(41) "Lawyers Against Musharraf: Why are attorneys taking to the streets in Pakistan?," by Michelle Tsai, Slate.com, November 5, 2007
(42) Emory Law School's Islamic Family Law Legal Profiles, Pakistan, Islamic Republic of
(43) "Reading Khamenei: The World View of Iran's most Powerful Leader," by Karim Sadjadpour, Carnegie Endowment for International Peace, 2008, p. 15
(44) Wikipedia article on Ulema
(45) Wikipedia article on Fiqh
(46) The Constitution of the Islamic Republic of Pakistan, Part X, Articles 232-234
(47) 47-Nation Pew Global Attitudes Survey, The Pew Global Attitudes Project, 27 June 2007, Table: "Favorable Views of the U.S.", page 17
(48) "US envoys travel to Pakistan's militant frontier as criticism mounts over timing of visit," Associated Press, March 26, 2008
(49) CIA World Factbook - Pakistan
(50) US Department of State Daily Press Briefing, Sean McCormack, Spokesman, March 25, 2008
(51) "Revenge of the Ne'er-Do-Well," by Devon Pendleton, Forbes Magazine, March 24, 2008
(52) This figure is basically a guess-timate. Wikipedia's article "Demographics of Pakistan" reports that there are over 1 million Pakistanis in the United Arab Emirates and 900,000 in Saudi Arabia alone. Another Wikipedia article on the "Pakistani diapora" states that there are 2.99 million Pakistanis in the Middle East, with fully 2 million living in Saudi Arabia, and provides no numbers for the UAE.

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