Law and Revolution in Iran

Following up on my last blog on the lawyers revolt in Pakistan, I thought it might be interesting to take a look at the theocracy in Iran. Lawyers in that country are using the legal framework of that country to challenge the government's abuses of authority. Why? Given that it is a totalitarian state, what would be the point? I conclude that by taking seriously the rights established by the Constitution in Iran the lawyers are pursuing a threat that could eventually establish a more open and amicable state. And that conclusion suggests an entirely different approach to dealing with Iran than any I have encountered before.

"The law is the will of he who the sherriff will obey." -- Chief Justice Oliver Wendell Holmes, Jr.

"In Islam, the legislative power and competence to establish laws belong exclusively to God Almighty." -- Leader of the Revolution Ruhollah Musawi Khomeini

SHIRIN EBADI

Last week, Shirin Ebadi, nobel laureate, prominent human rights activist and constitutional lawyer in Iran complained that the death threats against her and her family had recently increased in volume and intensity.(1) The very next day the President of Iran, Mahmoud Ahmadinejad, ordered the police to ensure the security of Mrs. Ebadi and get to the bottom of who was behind the trouble.(2) On the same day, the chief of police of Tehran was arrested after being caught at a brothel--this was a man who instigated a crackdown on immodestly dressed women just last year.(3)

Mrs. Ebadi is no friend to the current regime in Iran. She was one of the first female judges in that country and was forced to step down when the revolution took place. She is a prominent activist who has pushed for women's rights in that country as well as taken the cases of many dissidents--and as a result has been imprisoned many times. She is a reformer, who believes that the general principles of universal human rights are compatible with Islamic doctrine. She believes that the current regime has perverted the message of Islam for their own ends.(4)

Why, you might ask, would the revanchiste administration of Iran expend valuable manpower and cash on protecting one of their most prominent opponents? Part of the answer is that it would be extremely embarrassing if one of the most celebrated children of Iran were assassinated. Probably best not to let that happen. But I believe there is something else going on here, a process which has similarities to the ongoing lawyers revolt in Pakistan that I wrote about in my last blog.

LAW AND THE SHIA STATE

The Iranian government is probably unique in that it has so many institutions responsible for the making and interpretation of laws. It is almost certainly unique in that the Constitution provides for a legal authority superior to itself, the Koran--and thereby extends legal authority to people outside the government and even outside the country itself!

As I pointed out in my previous blog, one of the key preoccupations of Islam is the establishment of a rules-based society. The Koran and various other texts are consulted by clerics in order to determine what is permissable in just about every facet of life. Legal decision-making, interpretation, and argument is central to the life of a Muslim cleric.

One of the contentious doctrines of Shi'a jurisprudence is the guardianship of the Islamic Jurists or Velayat-e Faqih.(5) There are various takes on the doctrine, but it dates back to the 19th century and has as one of its doctrinal premises a hadith(6)--a recorded saying of prophet Muhammad which is not in the Koran--which states "the fuqaha [experts in Islamic jurisprudence](7) are the trustees of the prophets."(8)

This doctrine is the very bedrock of the Islamic Republic of Iran. In 1970, Ruhollah Khomenei's book Islamic Government: Guardianship of the Islamic Jurist (Hokumat-e Islami: Velayat-e faqih) was published arguing that the country's ruler should be someone who "surpasses all others in knowledge" of Islamic law and justice.(9)

And that is what was the revolution established in Iran. Chapter VIII, Article 110, of the Constitution ordained that the Leader of the Revolution (aka Supreme Leader)(10) would have very broad powers over pretty much every element of the government.(11)

This sounds totalitarian. And indeed it is.

The Iranian Constitution is modeled in many ways on the constitution of the Fifth Republic of France, which was created under de Gaulle in order to give more power to the executive.(12) It gives some lip service to rights generally established in Western Democracies, but nearly all of these rights are limited by whether or not they are in accordance with Islamic principles. Chapter III, article 40, provides that:

No one is entitled to exercise his rights in a way injurious to others or detrimental to public interests.(13)

Of course, the government decides what is in the public interest and so decides when it is OK to exercise your Constitutionally guaranteed rights.

However, there are some meaningful checks and balances written into the Iranian Constitution--and they all have to do with who gets to decide what is in accordance with Islamic law and custom.

There are no fewer than five institutions within the Iranian government that are charged with determining the law.

One: The Legislature, also known as the Majlis or the Islamic Consultative Assembly, which is democratically-elected and charged with writing the laws of the land.

Two: The "head of the Judiciary," who must be a Mujtahid--or Islamic scholar competent to interpret divine law in practical situations(14)--and is appointed by the Leader of the Revolution for a five year term. He is charged with the appointment of judges, their promotion or demotion, the drafting of judiciary bills, and the organizational structure of the judiciary as a whole. It should be noted that the judiciary is also charged with investigating as well as prosecuting criminal behavior, in conjunction with the Executive. The head of the judiciary also runs the National General Inspectorate, which is charged with ensuring the "correct implementation of laws" by the Administration.(15)

Three: the Supreme Court, which is responsible for overseeing "the correct implementation of the laws by the courts" and "ensuring uniformity of judicial procedure." The Chief Justice of the Iranian Supreme Court is chosen by the head of the judiciary in consultation with the members of the court.(16) One is appointed a member of the Supreme Court by the head of the judiciary--not by the Leader nor the President.

Four: the Guardian Council, which is charged with determining whether any bill passed by the Majlis is compatible "with the criteria of Islam and the Constitution."(17) There are 12 members of the Guardian Council. Six fuqaha, or experts in Islamic jurisprudence, are selected by the Leader of the Revolution. Six are jurists, experts in various spheres of the law, elected by the Majlis, subject to approval by the Head of the Judiciary. Members serve six year terms.

A bill submitted by the Majlis must pass by majority vote of the six religious jurisprudential experts (fuqaha) in the Guardian Council if it is to be deemed compatible with Islam and thus enacted into law. For a bill to be deemed compatible with the Constitution, a majority of all members of the Council is required.(18) Furthermore, all "interpretation" of the Constitution is the sole province of the Guardian Council, where a three-fourths majority is required in order to pass as authoritative.(19) (Moreover, the Guardian Council supervises all elections and referenda, and determines the eligibility of all candidates for elective office.)(20)

Five: the Exigency Council (aka Expediency Discernment Council), which is responsible for resolving any situation where the Guardian Council and Majlis disagree and the Leader of the Revolution feels it necessary to call them in to decide the dispute. The Exigency Council is wholly appointed by the Leader of the Revolution.(21)

There are two other governmental institutions which, I think, must also be considered important authorities determining the law of the land in Iran.

The Leader of the Revolution is responsible for "deliniating the general policies of the government and has the power to summarily dismiss the Head of the Judiciary and the six fuqaha members of the Guardian Council.

The Assembly of Experts is responsible for determining who will be the next Leader of the Revolution and may, given the right circumstances, dismiss him.(22) Theoretically, this could mean that the Assembly oversees the Leader in some way, but there is no evidence of such oversight on public record. Its 86 members are democratically elected to eight year terms, after candidates have been vetted by the Guardian Council.(23)

Depending on how you see it, then, in Iran there are five to seven different governmental authorities empowered to determine the law. None is truly independent of all the others, though the Leader and the Assembly of Experts are nearly completely autonomous.

Although the Leader has a great amount of indirect influence over official legal interpretation, he is not, in fact, directly involved in law making or even its interpretations. All of this work is delegated or in the hands of elected officials. This might seem strange, given the character of the revolutionary constitution.

But in practical terms, at the time of the Revolution, it made no difference. Ayatolla Ruholla Khomeini had pretty much unchallenged authority to interpret the Koran inside Iran itself.

Indeed, Khomeini is the only person in the history of Iran to be referred as an Imam outside of what have been traditionally considered the twelve rightful successors to Muhammad.

Imams in Shi'a belief "are possessed of supernatural knowledge, authority, and freedom from any error and sin."(24)

And this, I think, is the key to the puzzle: the reason Khomeini was comfortable delegating the power to interpret these laws is because he had reason to believe he would remain in complete control of the situation.

His power was safeguarded by the Constitution, and especially in Article 2:

The Islamic Republic is a system based on belief in:
1.the One God (as stated in the phrase "There is no god except Allah"), His exclusive sovereignty and the right to legislate, and the necessity of submission to His commands;
2.Divine revelation and its fundamental role in setting forth the laws;(25)

Khomeini said it all in 1979: "`since I have appointed [the Prime Minister], he must be obeyed.` It was `God's government,` he warned, disobedience against which was a `revolt against God.`"(26)

But the current Leader of the Revolution Ali Khamenei does not weild this religious authority. Far from it. And thus the Constitutional structure does not support his overweening influence over the affairs of the country in the way it did Khomeini.

REVOLUTION AND COMPROMISE

Khomeini's notion of the guardianship of the Islamic jurist is actually fairly controversial in the Shia community. At the time of the Revolution only one other Grand Ayatolla in Iran (out of about 12) held it to be compatible with scripture: Grand Ayatolla Hossein Ali Montazeri.(27)

And Montazeri was Khomeini's original choice as successor to the post of the Leader of the Revolution. In 1983, the Assembly of Experts designated him the official successor. But Montazeri fell out with Khomeini, and in particular criticized the government for the executions carried out after the Revolution as well as Khomeini's death warrant for Salman Rushdie. In 1989, Khomeini denounced Montazeri who thus lost his position as designated successor.(28)

The current Leader of the Revolution--Ayatolla Seyyed Hosseini Khamenei--did not have the religious credentials originally required by the Iranian Constitution for the highest post.(29) He only attained the title of Ayatolla--not Grand Ayatolla--by virtue of being elected Leader.(30) In fact, the Constitution was amended three months before Grand Ayatolla Ruhollah Khomeini's death to no longer require a candidate for the post of Leader of the Revolution be a supreme theological authority.(31) And Khamenei's selection caused some dissention amongst senior clerics who were better qualified from a religious perspective, including, unsurprisingly, Montazeri.(32)

Khamenei was a compromise candidate and his ascention was due to his political perspicacity and not his religious authority. This has created a situation where, at least theoretically, there are many authorities on the Koran who could make actions by the government unconstitutional, merely by ruling them contrary to the Koran. A strange situation to be in indeed.

At this moment, such a ruling from inside the country would likely be met with immediate arrest and character assassination in the state press. Any Ayatolla who in the sanctum of his conscience believes that the state has overstepped the bounds of Islamic Law must, perforce, walk quietly. Khamenei is firmly in charge there.

But there are Grand Ayatollas that live outside of Iran--beyond the long arm of the law, so to speak.

IRAN AND THE OTHER

It bears repeating that Iranians hold the United States responsible for the installation of the Shah and the overthrow of the democratically-elected government of Mohammad Mossadeq in 1953. The Revolution in 1979 was in a way a revolution against the American colonizer, the Shah being seen as a mere proxy for the US.

Moreover, many Iranians believe that the United States was a strong supporter an instigator of the Iran-Iraq War of 1980-88, where the Iranians lost an estimated one million people.(33) In any case, although I can only offer anecdotal evidence of this, to a great extent Iranians blame their historical woes on the pernicious efforts of outsiders--from the Arab invasion of the 7th century to the colonizing efforts of Britain, Russia, and ultimately, in their view, of the United States.

It was an explicit goal of the Revolution in 1979 to rid Iran of just such outside influences. For example, Article 3 of the Iranian Constitution stipulates that "the government of the Islamic Republic of Iran has the duty of directing all its resources to the following goals," goal five is "the complete elimination of imperialism and the prevention of foreign influence" and goal 13 is "the attainment of self-sufficiency in scientific, technological, industrial, agricultural, and military domains, and other similar spheres."(34)

The first two sentences of Article 9 hold that:

"In the Islamic Republic of Iran, the freedom, independence, unity, and territorial integrity of the country are inseparable from one another, and their preservation is the duty of the government and all individual citizens. No individual, group, or authority, has the right to infringe in the slightest way upon the political, cultural, economic, and military independence or the territorial integrity of Iran under the pretext of exercising freedom."(35)

There are no less than 12 articles and sections of the Constitution concerned with eliminating and preventing outside influence.(36) This indicates to me a certain preoccupation with the issue.

I think it is clear that currently Iranians feel that they are in the crosshairs of a powerful outside influence--the United States.
A recent survey by WorldPublicOpinion.org which polled Iranian citizens on a variety of subjects found that 64% of Iranian respondents thought the United States was purposefully trying "to humiliate" the Islamic world. 55% believe that US bases in the Middle East are a threat to Iran. (This number is down from December 2006, when 73% had that perception--perhaps because it is widely perceived that American power has been depleted by our involvement in Iraq.)(37) 71% think it is "definitely" America's goal "to maintain control over the oil resources of the Middle East."(38) 65% of Iranians believe that the United States controls "most" or "nearly all" of the world.(39)

In other words, "the Great Satan" controls most or nearly all of the world. Not an ideal situation.

This might explain the rather high levels of support for the government the survey found in Iran. When asked whether they were satisfied with the direction the country was going in, 65% of Iranians were.(40) 74% of Iranians apparently trust the national government to do "what is right." 64% of Iranians are satisfied with Iran's foreign relations. 63% responded that they thought President Amadinejad had improved Iran's overall national security!(41)

One would be forgiven for having some misgivings about the responses to such highly charged questions in a poll conducted in a country where frank opposition to the government is unsafe. Nonetheless, this is the data we have, and even if you discount a portion of the responses, it does seem that there is widespread support for the government and its policies--much more than any government is likely to require to perpetuate itself.

So while it may be that the Iranian Revolution has betrayed most of its promises, the Iranians may well feel inclined to express strong support for their government as the most capable of resisting foreign domination--and when the meddling of foreigners needs to be dealt with immediately. That would be my guess, in any case.

IRAQ

There has been a lot of ink spilled on how the invasion of Iraq has created a "shi'ite crescent," increasing Iran's influence via their solidarity and credibility with the Shia's of Lebanon, Syria, Iraq, and the Gulf nations.(42) Perhaps this is so, but the influence can potentially go in both directions.

Grand Ayatolla Ali Sistani is the most prominent Shia cleric in Iraq, based in Najaf.(43) Najaf is a particularly important city in terms of Iran for two reasons: it is the home of the Imam Ali Mosque, the third holiest site in Shia Islam, and it is where Ruholla Khomeini spent most of his time in exile from the Shah's regime. It is where he wrote Islamic Government: Authority of the Jurist.(44)

There is a long tradition of dissent in Shi'a Islam, and, Najaf has been at points in its history one of its foci. In fact, Ali Sistani is a much more highly regarded religious authority than the current Leader of the Revolution in Iran, Ali Khamenei. And Grand Ayatolla Ali Sistani is on the record as ruling that the concept of the Guardianship of the Islamic Jurist as it is expressed in Iran is contrary to his understanding of Islam.(45)

Ali Sistani--like most Iraqi clerics--is extremely uncomfortable with the US presence in Iraq and does not want to be associated with the United States in any way.(46) I think it is fair to say that any association with the United States would taint his reputation. Also, as long as the United States is in Iraq, Iran remains a powerful counterbalance to our influence there--something that Sistani likely considers useful.

But this is also tricky business for the Iranians. For example, in the recent fighting between the Mahdi Army and US (and Iraqi government) forces, the Iranians backed the Iraqi government--and by extension the US.(47) The Mahdi Army is led by Muqtada al-Sadr, who is also on record as being against the Iranian expression of the Guardianship of the Islamic Jurist. His version of an Islamic government would to all intents and purposes gut the role of the supreme religious authority.(48) Sadr is the head of an effective military force in Iraq--unlike Sistani--and studying to be an Ayatollah (he is currently just an Hojatoleslam(49), or what the Ali Khamenei's religious rank was just prior to his elevation to Leader.) And though it is much more complicated than that, I see why Iran would be uncomfortable with the rise of another religious authority next door who happened to be in charge of a military organization and explicitly against their form of government.

Ali Sistani would in some ways be more of a concern to me were I in charge of Iran. If Iraq were to stabilize and his influence grew, his interpretations could be seen as a challenge to the constitutionality of the Iranian Constitution itself. There have been unsubstantiated rumors of assassination attempts on Sistani's life. If one were to ask who benefits from such a deed, there are a number of answers, but it ain't the US, and Iran potentially would.

Either way, there are plenty of religious authorities in Iraq, and the view generally held in Najaf is contrary to the Khomeini interpretation of the Guardianship of the Islamic Jurist. They have credibility in Iran. And if the US were to leave Iraq, this credibility could grow. And if the guy the sherriff in Iran will obey ends up being a cleric in Iraq--as in 1979--then the government in Iran has a real problem. After all, there are already significant religious authorities in Iran, like Montazeri, who are against Khomeini's interpretation of the Guardianship of the Islamic Jurist.

REVOLUTION COMPROMISED

And the fact of the credibility of religious authorities in Iraq is a problem for Iran, not just because the Leader of the Revolution has less, but because the Iranian Revolution, like most, cannot make good on its many and various promises.

It promises a lot.

It promises equal rights, regardless of color or sex.(50) The investigation into a person's personal beliefs is forbidden.(51) Freedom of expression is guaranteed.(52) Freedom of association is as well.(53) Social security, free education, and housing are all guaranteed.(54) Innocence is presumed, the right to a fair trial and counsel affirmed, and torture is prohibited by the Iranian Constitution.(55)

There are many more. And as I pointed out above, most of these rights are qualified with exceptions which provide for instances where the law can curtail these privleges. The Iranian government has made good use of those qualifiers. But, there is another important protection in sentence three, Article 9 of the Constitution:

"no authority has the right to abrogate legitimate freedoms, not even by enacting laws and regulations for that purpose, under the pretext of preserving the independence and territorial integrity of the country. "(56)

The Iranian government has arguably done that ... more than once. And this particular article is unalterable under the current Constitution.

PROMISES MATTER

Why would the Byzantine intricacies of Shi'a theology and law make any difference on the ground in Iran?

The history of the US might be a useful guide. Our own revolution declared as self-evident that all men are created equal. Of course, the US Constitution was a compromise which allowed for the slavery of a portion of the human race. And the movement which cried out most bitterly about the contraditions therein was originally and primarily a religious movement, led by Quakers and refreshed by the Great Awakening in the 1830s.(57)

William Garrison, the most celebrated abolitionist of his time, is said to have called the Constitution a "covenant with death and an agreement with hell." Here was his argument in his own words:

"No body of men ever had the right to guarantee the holding of human beings in bondage. Who or what were the framers of our government, that they should dare confirm and authorize such high-handed villany – such a flagrant violation of all the precepts and injunctions of the gospel — such a savage war upon a sixth of our whole population? —They were men, like ourselves – as fallible, as sinful, as weak, as ourselves. By the infamous bargain which they made between themselves, they virtually dethroned the Most High God, and trampled beneath their feet their own solemn and heaven-attested Declaration, that all men are created equal, and endowed by their Creator with certain inalienable rights ...."(58)

It is clear that it was a powerfully effective argument. And, after all, that was a great part of the justification of the Iranian Revolution in the first place, the Shah's compact with us--"the Great Satan." I think they ignore such contradictions at their own risk.

From my distant remove, that is what I think Mrs. Shirin Ebadi and her ilk are up to. They may provide some credibility to the regime by taking their promises seriously, but it is by seriously exploring the contradictions within the Constitution and its application by the government, that dissenters are able to undermine the credibility of the regime itself. Efforts by the regime to reconcile the Constitution with the needs of the day will make for more and more convoluted compromises. It is a slow process. But it is a likely one, and likely inevitable as well.

Just as our Constitution had contradictions that required an eventual shaking out, so does the Constitution of Iran.

WHAT CAN THE US DO?

Proactively? Not much, in my view. Any backing by the US of these efforts in Iran or clerical authorities in Iraq would only undermine the credibility of those we are trying to support. Calls for such efforts are misguided.(59) The US is the third rail of politics in Iran--and probably in Iraq as well. Our favorable ratings throughout the Middle East are--as I pointed out in an earlier blog--very very low. Though we should complain loudly when obvious human rights violations are taking place, we should do as much as possible to maintain a distance from those elements that we believe might produce positive change in Iran.

Furthermore, as long as we are in Iraq and have troops in the Middle East, we are providing the cover that the theocracy in Iran needs to continue as it has. We actually diminish the chances of an outcome of the debate in Iran which is in our interests--and the Middle East generally--by being so directly involved in the affairs of the region simply because we seem threatening.

Obviously, given the energy needs of the US, Europe, India, China, and Japan, American security guarantees are going to be an ongoing concern. But the notion of long-term bases in the region is likely a mistake, given the evolution of the debate there. Germany, Japan, and South Korea were one thing, this is quite another. We would best be served by limiting or getting rid altogether of our military presence in the region.

The exception to this is Afghanistan. We cannot afford to let Afghanistan slip back into chaos or under Taliban control. Interestingly, Iran would likely be a tactical ally in our efforts against the Taliban in Afghanistan. The Administration has denied that there has been any cooperation between Iranian and American special forces in Afghanistan, but members of the Iranian parliament have mentioned it(60), and Shias are not regarded as Muslim by the Taliban.(61) My suspicion is that such cooperation has in fact occured. I also suspect that it is difficult territory for the Iranian leadership, as cooperation with "the Great Satan" seems contrary to the whole meaning of the Revolution--and thus should be encouraged!

It has also been suggested that we ought to engage Iran, and try and bring about a "grand bargain."(62) Much as I respect and admire the various realist luminaries, such as Flynt Leverett, Tom Pickering, and others who support the idea, I suspect pursuing one is not likely to be productive. At each moment when the Iranians and the Americans have sat down to talk about this possibility, one side or the other has backed out. As I wrote above, I believe the Iranians need us as adversaries in order to perpetuate their regime ... and any attempted bargain with the United States exposes an Iranian politician to dangerous criticism in Iran itself. I believe it would make more sense to simply agree to talk to the Iranians when they want to, establish an embassy in Tehran should they ask for one, but pursue a wait and see policy where we would only agree to Iranian proposals if there existed clear advantages to us.

I believe that our embargo of Iran should be carefully reconsidered as well. It is likely that the embargo has a negative effect upon the development of the energy industry in Iran. I do not believe that this is in our best interests, as less oil in tight markets means exponentially higher oil prices. Lifting the embargo on Iranian oil wouldn't make much of a change, but allowing for financing may well end up making their industry more productive, which will bring down the price of oil and natural gas somewhat, over the long term.

Moreover, it is not clear to me that trying to weaken the economy in Iran is likely to produce change in the government there. There is the old example of Cuba, which, though it has been subject to an embargo much more effective than any possible with Iran, has safely perpetuated the communist regime for over 50 years.

I think that the J-curve theory of social revolutions is more likely. First proposed by James Davies in 1972, the J-curve theory of social revolutions argues that it is after first an increase in economic well-being which produces certain expectations, and then a political and economic drop in well-being, widening the gap between expectation and reality, that revolutions occur.(63) I expect that such economic well-being, combined with critical evaluation of the Revolution's promise and an absence of a outsider threat to cover the regime's broken promises is the twist of fate we are waiting on. I do not think that the embargo should just be abandoned unilaterally--we should wait on a good opportunity, where we can wrest some advantage from it. But I think it should be on the table.

(1) Iranian Nobel Laureate Complains of Death Threats, RFE/RL Newsline, Tuesday, April 15, 2008, Volume 12, Number 71
(2) Iran's Ahmadinejad orders police to protect Ebadi, AFP, Tue Apr 15, 9:55 AM ET
3) Chief of police for Tehran was arrested, Iran confirms, by Nazila Fathi, International Herald Tribune, April 16, 2008
(4) The Nobel Foundation's Nobel Peace Prize Biography of Shirin Ebadi
(5) Wikipedia: Ja'fari jurisprudence
(6) For a discussion of the Hadith, see Wikipedia: Hadith. Basically they are stories about Prophet Muhammad which were passed down orally until they were finally put to paper two or three hundred years after his death. In a way there are similar to the Apocrypha of Christianity, except that they are regularly and generally consulted as clarifications of the meaning of the Koran and what is therefore halaal, i.e. kosher or permitted, and haraam, that is, forbidden.
(7) Fuqaha is the plural of Faqih--an expert in Islamic jurisprudence (fiqh), see a discussion of the term at Wikipedia: Faqih and Wikipedia: Fiqh.
(8) Wikipedia: Guardianship of the Islamic Jurists
(9) Wikipedia: Hokumat-e Islami : Velayat-e faqih
(10) Actually in the Constitution the position of the Supreme Leader is referred to as "the Leader of the Revolution" or just plain "Leader." See Wikipedia: Supreme Leader of Iran
(11) from the translation of the Constitution of the Islamic Republic of Iran at International Constitutional Law database hosted by Bern University in Switzerland:

Article 110 [Leadership Duties and Powers]
(1) Following are the duties and powers of the Leadership:
1. Delineation of the general policies of the Islamic Republic of Iran after consultation with the Nation's Exigency Council.
2. Supervision over the proper execution of the general policies of the system.
3. Issuing decrees for national referenda.
4. Assuming supreme command of the Armed Forces.
5. Declaration of war and peace and the mobilization of the Armed Forces.
6. Appointment, dismissal, and resignation of:
a. the religious men on the Guardian Council,
b. the supreme judicial authority of the country,
c. the head of the radio and television network of the Islamic Republic of Iran,
d. the chief of the joint staff,
e. the chief commander of the Islamic Revolution Guards Corps, and
f. the supreme commanders of the Armed Forces.
7. Resolving differences between the three wings of the Armed Forces and regulation of their relations.
8. Resolving the problems which cannot be solved by conventional methods, through the Nation's Exigency Council.
9. Signing the decree formalizing the election of the President of the Republic by the people. The suitability of candidates for the Presidency of the Republic, with respect to the qualifications specified in the Constitution, must be confirmed before elections take place by the Guardian Council, and, in the case of the first term of a President, by the Leadership.
10. Dismissal of the President of the Republic, with due regard for the interests of the country, after the Supreme Court holds him guilty of the violation of his constitutional duties, or after a vote of the Islamic Consultative Assembly testifying to his incompetence on the basis of Article 89.
11. Pardoning or reducing the sentences of convicts, within the framework of Islamic criteria, on a recommendation from the Head of judicial power.

(2) The Leader may delegate part of his duties and powers to another person.

(12) My previous piece on Venezuela points out that the party that first brought Chavez to power was known as the "Fifth Republic Movement"--the kinship between Venezuela and Iran is actually a bit deeper than people usually suspect. (Venezuela, of course, was the country behind the establishment of OPEC.)
(13) English translation of the Constitution of the Islamic Republic of Iran, hosted by Iran online.
(14) Wikipedia: Ijtihad
(15) English translation of the Constitution of the Islamic Republic of Iran, Chapter XI, Articles 156-8, and 174, hosted by Iran online.
(16) English translation of the Constitution of the Islamic Republic of Iran, Chapter XI, Articles 161-4, at International Constitutional Law database hosted by Bern University in Switzerland. (Perhaps due to the amendment of the Constitution in 1989, Iran online's version of the document does not at the moment include Article 163.)
(17) English translation of the Constitution of the Islamic Republic of Iran, Chapter VI, Section 2, Article 94, hosted by Iran online.
(18) Article 96
(19) Article 98 (I do not know how this operates in practice, but it is a tremendous amount of authority, theoretically speaking.)
(20) Article 99
(21) English translation of the Constitution of the Islamic Republic of Iran, Chapter VIII, Article 112
(22) Article 111
(23) Wikipedia: Assembly of Experts
(24) Wikipedia: Imamah
(25) English translation of the Constitution of the Islamic Republic of Iran, Chapter I, Article 1, hosted by Iran online.
(26) Wikipedia: Ruhollah Khomeini
(27) Wikipedia: Ruhollah Khomeini
(28) Wikipedia: Grand Ayatolla Hossein- Ali Montazeri
(29) Reading Khamenei: the World View of Iran's Most Powerful Leader, by Karim Sadjadpour, Carnegie Endowment for International Peace, March 2008, p. 11
(30) Wikipedia: Ali Khamenei
(31) Iran Online: The Leadership
(32) Wikipedia: Ali Khamenei
(33) Wikipedia: Iran-Iraq War
(34) English translation of the Constitution of the Islamic Republic of Iran, Chapter I (General Principles), Article 3, hosted by Iran online.
(35) English translation of the Constitution of the Islamic Republic of Iran, Chapter I (General Principles), Article 9, hosted by Iran online.
(36) The 9 others are: Article 43, section 8, of the Iranian Constitution holds that insofar as the economy goes, it is the duty of the government to [prevent] "foreign economic domination over the country's economy." Cf: English translation of the Constitution of the Islamic Republic of Iran, Chapter IV.
Article 78 holds that "All changes in the boundaries of the country are forbidden;" Article 81: "The granting of concessions to foreigners for the formation of companies or institutions dealing with commerce, industry, agriculture, services or mineral extraction, is absolutely forbidden;" and Article 82 "The employment of foreign experts is forbidden, except in cases of necessity and with the approval of the Islamic Consultative Assembly. Cf: (46) English translation of the Constitution of the Islamic Republic of Iran, Chapter VI, Part 2.
Article 145 stipulates that "No foreigner will be accepted into the Army or security forces of the country." Article 146 "The establishment of any kind of foreign military base in Iran, even for peaceful purposes, is forbidden." Cf: English translation of the Constitution of the Islamic Republic of Iran, Chapter 9, Part 3.
Article 152 states:

"The foreign policy of the Islamic Republic of Iran is based upon the rejection of all forms of domination, both the exertion of it and submission to it, the preservation of the independence of the country in all respects and its territorial integrity, the defence of the rights of all Muslims, non-alignment with respect to the hegemonist superpowers ...."

Article 153 continues with "Any form of agreement resulting in foreign control over the natural resources, economy, army, or culture of the country, as well as other aspects of the national life, is forbidden." English translation of the Constitution of the Islamic Republic of Iran, Chapter X (Foreign Policy), hosted by Iran online.
(37) Public Opinion in Iran, with comparisons to American Public Opinion, A WorldPublicOpinion.org poll, p. 11, April 7, 2008. The poll was conducted in partnership with Search for Common Ground and Knowledge Networks as well as an unnamed polling firm in Iran. (WorldPublicOpinion.org is a program managed by the Program on International Policy Attitudes at the University of Maryland.)
(38) p. 10
(39) p. 11
(40) p. 18
(41) p. 19
(42) see, for example, Vali Nasr's book: The Shia Revival: How Conflicts within Islam Will Shape the Future, W.W. Norton, April 9, 2007, which I have not read, but understand addresses this issue directly. A google search will yield many other examples.
(43) Wikipedia: Grand Ayatollah Ali al-Sistani
(44) Wikipedia: Ruhollah Khomeini
(45) "'Shia Democracy': Myth or Reality?", by Sreeram Chaulia, February 16, 2007, Worldpress.org.
(46) "The Grand Ayatollah Behind the Curtain," by Colbert I. King, The Washington Post, Saturday, October 28, 2006; Page A15.
(47) Informed Comment: Iran Supported al-Maliki against Militias: OSC, by Juan Cole, Sunday, April 13, 2008.
(48) "The Shi‘a in the Arab World," Middle East Report Editorial, Volume 242, Spring 2007.
(49) Wikipedia: Muqtada al-Sadr
(50) Articles 19 and 20
(51) Article 23
(52) Article 24
(53) Articles 26 and 27
(54) Articles 29 - 31
(55) Articles 37, 34, 35 and 38, respectively
(56) Article 9
(57) Wikipedia: Abolitionism
(58) The Liberator Files: The Constitution and a Call for Disunion, a collection of items from Garrison's paper in Boston, The Liberator, the selection quoted was printed in 1832.
(59) See for example Michael McFaul and Abbas Milani's suggestions at a recent Hoover Institution event discussing Ahmadinejad and Iran's Nuclear Program.
(60) "Iran helped overthrow Taliban, candidate says," by Barbara Slavin, USA Today, June 9, 2005
(61) Wikipedia: Taliban
(62) "A grand bargain, or else," by Flynt Leverett, International Herald Tribune, Tuesday, June 20, 2006.
(63) Fragilecologies: Davies J-Curve Revisited, by Michael H. Glantz, 27 June 2003.

The Law in Pakistan

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

LAWYERS AND REVOLUTIONS

"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.

THE LAWYER REVOLT IN PAKISTAN

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.

RULE OF LAW IN PAKISTAN

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.

WHITHER PAKISTAN?

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.

Geopolitical Consequences of the Candidates

Given the upcoming--and ongoing--elections for President of the United States of America, I thought it might be interesting to take a look at the potential geopolitical effect each of the candidates could have on our standing in the world.

Elections are not believed to be decided on foreign affairs issues. As the Honorable Tip O'Neill famously pointed out, "All politics is local." We are, however, in the midst of a seven year war on two separate fronts, and it may be that some votes will be decided in 2008 on the basis of our foreign policy options and which candidate is most likely to perform well internationally. I am aware of no data on how many voters rate it their top concern, however.

One thing is pretty clear: the world's opinion of the United States has dropped significantly since the war in Iraq began. According to the Pew Global Attitudes Project, in the nation with which we enjoy a "special relationship"(1)--Britain--favorable public opinion of the United States has dropped 19% since 2003--from 70 to 51. In Germany, the drop was 15%--from 45 to 30. In Italy we lost 7% from 60 to 53; in Spain we lost 4% from 38 to 34; and in that old bugbear France we lost 3%, from 42 to 39.(2)

For the rest of the world, there are mixed results since 2003, but the trend from 9/11 is clear. In Canada, by far our largest trading partner(3) and an important source of hydrocarbons, favorable opinion has dropped from 71% in 2000 to 55% in 2007. In Mexico, favorable opinion has dropped from 68% in 2000 to 56% in 2007. For the same period, favorable opinion has dropped by 34% in Argentina, 33% in Venezuela, 24% in Bolivia, 13% in Peru, and 12% in Brazil--mostly from strong majorities.(4)

In Eastern Europe, most states have registered double digit drops in favorable opinions of the US since 2000. (However, this is from strong highs, with several states reporting majority favorable opinions and no states reporting less than 41%.) The very notable--and rather inexplicable to me--exception is Russia, which has seen a 4% rise since 2000, from 37 to 41%. In Turkey, perhaps our most important Muslim ally worldwide and a geostrategical skeleton key to the Middle East, the Mediterranean, and the Black Sea, favorable opinion has dropped from 52% in 2000 to 9% in 2007.(5)

Pew doesn't have data for 2000 for most of the Middle East, but numbers in 2007 are mostly quite low, with Egypt reporting a favorable opinion of 21%, Jordan 20%, and the Palestinian Territories 13%. Kuwait, which we liberated from Saddam in the first Gulf War, reports a favorable opinion of 46%, down 17% from 2003. Lebanon, where the United States was the primary foreign sponsor of removing Syrian influence on that country, has seen a 20% rise since 2003 to a favorable rating of 47%.(6)

Like the Middle East, Pew does not have numbers dating back to 2000 for all the countries it covers in Asia , but the story remains mostly the same. In China, the most significant rising economic and political power in the world, favorable opinions of America have dropped from 42% in 2005 to 34% in 2007. In India, easily the second most significant rising economic and political power worldwide, favorable opinion has dropped from 66% in 2002 to 59% in 2007. (This is despite the nuclear deal of 2006(7), and the determination of the US to create a strong alliance with India.) In Indonesia, which has the largest population of Muslims in the world, membership in OPEC, and sits right on some of the most important shipping lanes in the world, favorable opinion of the US has dropped from 75% in 2000 to 29% in 2007. (This is up, however, from the low of 15% seen in 2003.)(8)

Japan, the third largest economy in the world and our most important ally in Asia, has registered a drop in favorable opinion of 15% from 77% in 2000 to 61% in 2007. South Korea remains steady at 58%. 15% of Pakistanis had a favorable opinion of the US in 2007, worrying given their importance to our efforts versus Al Qaeda and in Afghanistan. 27% of Malaysians have a favorable view of the US. Bangladesh has bucked the trend with 53% seeing the US in a positive light in 2007, up from 45% in 2002.(9)

The good news is Africa, where most nations reported strong majorities having positive views of the US. In Nigeria, the largest oil exporter to the US in Africa and a country with a large Muslims population, our numbers have actually gone up with 70% reporting a positive view of the US in 2007, as opposed to 46% in 2000.(10)

While these numbers are not as bad as some scare-mongers and headlines suggest, the trend is clear and--outside of sub-Saharan Africa--it is not good for American interests. The numbers for several key geopolitical flash points--Turkey, Indonesia, China, Pakistan, and the Middle East--are not good or frankly awful. The numbers for key allies like Japan, the UK, Canada, France, Germany, and Mexico are down.

Given that the above is a fair assessment of the situation, what is the likely effect of our Presidential candidates if elected?

BRIEF ASSESSMENT OF OVERALL US POSITION

SOFT POWER(11):
It seems fairly plain that it would be hard to do worse than our current Administration insofar as our cultural and ideological influence around the world goes.

This is, after all, the Administration that OK'd the use of torture, engaged in rendition in order to have others do our dirty work for us, established a prison which seems to have no due process of law in Cuba, no less, and manufactured evidence in front of the entire world in order to prosecute a war against an old enemy.(12)

All the old standbys regarding our principles and what America stands for--due process of the law, fair-mindedness, honesty, work ethic, personal responsibility, democracy, human rights--appear to have been compromised or nearly completely discredited by the current Administration.

This is a tremendous shame because it squandered the overwhelming sympathy the world felt for us after 9/11, and means that we are less able to pursue, and put an end to, those who were responsible. It seems to me that all of the presidential candidates would represent a considerable advantage over the current administration in terms of soft power, though some have more distinct advantages than others, which I will explore below.

HARD POWER(13):
American hard power--which is used to refer to the military, economic, and geographic resources that a country may use as carrots and sticks to influence other nations--has been compromised by the current Administration in many ways, though ultimately the country remains undeniably extremely strong.

We are in the middle of a two-front war that has lasted about seven years, with little end in sight. It appears that our military is very stretched at the moment, unable to find enough new recruits to fulfill its current obligations. Should new significant hostilities arise elsewhere, it is not clear that we would have enough material and men available to address it.

Although this may encourage other state actors to behave adventuristically--see, for example, Chavez's recent support for the FARC in Colombia(14)--I suspect there are few that are willing to seriously try the patience of any incoming administration and even fewer that have good reasons, given their interests, to do so. The United States still has the most sophisticated and one of the largest militaries in the world, and by far the largest military budget in the world.(15)

Also, despite the recent downturn, the United States is still the largest economy in the world. This is likely to change somewhat as China and India grow, but whomever we choose to be President will have little effect upon that evolution. Either way, the President will still have considerable resources to bear in any negotiation that the United States might find itself in. Nonetheless, some candidates will have more experience with using these tools than others, which I will discuss below.

THE CANDIDATES:

BARACK OBAMA

SOFT POWER:
I think it is plain that Senator Obama would have a tremendous effect on the world were he elected to the Presidency. To state the obvious, his skin is black, and there are many around the world--and even here in the US--who believe that a black man could never be elected President of the United States. There are many in the world who see us as an evil hegemon and who argue that our elections are a sham and that the powers that be would never allow a black man to become President. What would these people say were Senator Obama elected? If the one is true, how could the other have taken place? The credibility of our elections would be in many ways restored, especially after Vice President Al Gore's loss in Florida to the Supreme Court of the United States. There will be some who cannot be convinced no matter what, but the public relations value of his Presidency would be enormous.

Since it is at least popularly perceived that Obama opposed the war in Iraq from the start, the Senator will also not be tied to the current policy in quite the way that the other candidates are. His assertions that the United States will put an end to the use of torture, put an end to Guantanamo, and negotiate directly with those with which the US has strained relations would likely be received as more credible than with the other candidates. This, I believe, would restore much of the credibility of the United States throughout the world and represents a great opportunity.

Moreover, the fact that Obama spent some of his childhood in Indonesia is likely to make some there feel that he would have an understanding of their point of view, an important asset. Indonesia is an important geopolitical flash point where the percentage of folks with a favorable view of the United States dropped to 29% in 2007. His father is from Kenya, and I suspect that the peoples of sub-Saharan Africa, and even in Somalia, would greet his election with something akin to wonder at the universal potential of the United States.

However, to state the obvious, Senator Obama is a black man, and much of the world is racist, sad to say. Some leaders might see him as less than equal to their own skills and test our limits for that very reason. However, I think that this would have a small effect, and I suspect that Senator Obama would handle any such challenges handily.

So, as to the potential positive value of his presidency in terms of soft power, I give the Senator an 8 out of 10 (on my completely random scale.)

HARD POWER:
It is hard to rate how a candidate might fare in terms of hard power because so much is out of his hands. It seems to me that the primary factor is experience, how energetic they are, and their common sense, all difficult things to assess from reports in the press.

The notion that Senator Obama is the least experienced of the three candidates is nonsense in my opinion. He has the second longest career as an elected official, though his time in the US Senate is the shortest. His early political career was spent in Chicago, famous for hard ball politics. However, his foreign affairs experience is necessarily limited by the relative shortness of his stay in the Senate.

Ultimately, part of the President's job, however, is to listen to his advisors in a way that demonstrates common sense. The Senator's advisory team is very distinguished and not filled with idealists, but rather their opposite. His most famous advisor, Secretary Brzezinsky, is an old cold warrior with about as cold an eye when it comes to American interests as they come.

In all, on a hard power scale then, I believe that Senator Obama would rate about a 5 out of 10.

HILLARY CLINTON

SOFT POWER:
One might think that Senator Clinton's sex would send a positive sign to the rest of the world, about 50% of it in fact. However, I think that it would not be as powerful a signal as Senator Obama's for the simple reason that the United States is already regarded as the place where women have the most opportunities--with the possible exception of Scandinavia.

I think her value from a public relations perspective would come mostly from her being attached to her husband, who is extremely well-regarded in the world. Much of Europe, for example, would breathe a sigh of relief that sanity and amity had returned to America's foreign policy drivers.

On the other hand, Senator Clinton did vote for the war in Iraq, and her opposition to some of the other, more egregious, violations of American principles such as due process and the prohibition of cruel or unusual punishment are not well known. I don't think that her election would make the world that much more ready to take American negotiators at face value--many, perhaps a majority, would consider her a business-as-usual candidate, though one much more predictable and, thus, reasonable, than her predecessor.

Also, just as much of the world is racist, it is sexist, too, and there is some likelihood despite Senator Clinton's obvious no-nonsense approach to foreign affairs, that her limits would be tried by some were she President. Still, I believe that the Senator would be able to handle such challenges readily.

I thus give Senator a 5 out of 10 in terms of soft power advantage over the Bush Administration.

HARD POWER:
As I stated above, I believe that Senator Clinton is the least experienced elected states person on offer. However, she will, just as Senator Obama, bring many very experienced foreign policy advisors with her, none of which are known for being fabulists when it comes to the rest of the world.

Moreover, her time in the White House, even if unelected, must of given her tremendous insight into how the levers of power inside Washington, DC, actually operate. The years in the White House and after have also brought the Senator into contact with nearly all the leaders of the world, and a real familiarity with the way that diplomacy operates.

I therefore give Senator Clinton a 6 out of 10 in hard power advantage over the current Administration on my completely arbitrary scale.

JOHN MCCAIN

SOFT POWER:
Senator John McCain is a genuine war hero, with decades of experience in the Senate, who has opposed the use of torture and the denial of due process in Guantanamo from the beginning. He has firsthand experience of being a prisoner of war and I believe means every word when he says he means to put an end to those practices. He is an honorable man with years of experience in the military and I believe that he would be seen as a breath of fresh air by the world in this respect.

However, the Senator has stated that we will stay in Iraq for 10,000 years if necessary.(16) I don't think the Senator meant that in quite the way it has been repeated, he said at the time on Face the Nation that what he believes Americans are concerned about is having our troops face the brunt of the conflict. However, the world is not likely to give the Senator much slack in terms of these sorts of statements, and I believe they will think that he is in many ways the business-as-usual candidate. Perhaps the one most likely to spread conflict in destabilizing ways.

Although the Senator is getting on in years, much of the world respects the elderly much more than we do in the United States, sad to say. I think his age would be a net plus, especially in Asia, though it is given short shrift domestically. He is unlikely to be tried by foreign adversaries, who likely remember that President Reagan was fairly elderly as well.

Therefore, in terms of his advantage over the Bush Administration in soft power, Senator McCain is decidedly mixed, and I give him a 3 out of 10. Anyone would be a welcome relief from the current Administration, but to a large extent he will be seen as business-as-usual.

HARD POWER:
The breadth of Senator McCain's experience is undeniable, though he has never served in an executive branch. He has knowledge of the world, and nearly 30 years in Washington, DC, must have imparted a deep understanding of how the levers of power operate.

I therefore give him a 8 out of 10 on a hard power scale.

RELATIVE ADVANTAGES OF SOFT VS. HARD POWER

Everyone has to make their own determinations about the relative advantages of soft vs hard power, though I do believe that in the final estimation of competing nations hard power is the decider.

However, I do not think that Presidents have much effect upon hard power outside of their decisions on how to wield it. Economies do not run on a timetable keyed to Presidential elections. Our military will be the most powerful in the world for the foreseeable future, no matter our current strategic position.

The primary consideration, in terms of geopolitical effect, of our Presidential candidates, then, is soft power, and Senator Obama is the clear winner in that category. If it seemed that he was not energetic or did not have enough common sense to use our hard power wisely, then he would not be the best on offer. But, solely in terms of foreign affairs, I believe he would have the best effect in terms of our national interests.

Finally, I believe that all the candidates would make great presidents and am not sure that foreign affairs should be the deciding factor in choosing one or the other. But were it so, I believe that Senator Obama would be the most rational choice.

(1) For a decent discussion of the US-UK "special relationship," see the Wikipedia article on the same.
(2) 47-Nation Pew Global Attitudes Survey, The Pew Global Attitudes Project, 27 June 2007, Table: "Favorable Views of the U.S.", page 17
(3) Hoover Institution: FACTS ON POLICY: Top Trading Partners
(4) 47-Nation Pew Global Attitudes Survey, The Pew Global Attitudes Project, 27 June 2007, Table: "Favorable Views of the U.S.", page 17
(5) 47-Nation Pew Global Attitudes Survey, The Pew Global Attitudes Project, 27 June 2007, Table: "Favorable Views of the U.S.", page 17
(6) 47-Nation Pew Global Attitudes Survey, The Pew Global Attitudes Project, 27 June 2007, Table: "Favorable Views of the U.S.", page 17
(7) For a decent discussion of the United States-India Peaceful Atomic Energy Act, see the Wikipedia article of the same name.
(8) 47-Nation Pew Global Attitudes Survey, The Pew Global Attitudes Project, 27 June 2007, Table: "Favorable Views of the U.S.", page 17
(9) 47-Nation Pew Global Attitudes Survey, The Pew Global Attitudes Project, 27 June 2007, Table: "Favorable Views of the U.S.", page 17
(10) 47-Nation Pew Global Attitudes Survey, The Pew Global Attitudes Project, 27 June 2007, Table: "Favorable Views of the U.S.", page 17 Plainly our efforts to combat the spread of HIV/AIDS in sub-Saharan Africa have won us friends there and, it seems to me, this is one of the few lasting--and very important--foreign policy successes of the Bush Administration, for which Colin Powell also deserves much credit. President Bush should be rightly proud of this particular initiative.
(11) For a short dicussion of the meaning of "soft power" and the term's provenance and evolution, see the Wikipedia article of the same name.
(12) McClatchy Newspapers: "Exhaustive review finds no link between Saddam and al Qaida", by Warren P. Strobel, March 10, 2008
(13) A short discussion of "hard power" is available on Wikipedia.
(14) For a little background on the recent conflagoration between Venezuela, Ecuador and Columbia, see: Time Magazine, "Colombia: Chavez Funds FARC", by Toby Muse, March 4, 2008, and Time Magazine, "War Drums in Latin America," by Tim Padgett, March 3, 2008.
(15) Article on the Military budget of the United States in Wikipedia.
(16) Youtube video of clips from Face the Nation and Meet the Press where Senator McCain states that he would keep troops there for 10,000 years if necessary. The Boston Globe, "McCain fights back in '10,000 years war", February 13, 2008

FREE hit counter and Internet traffic statistics from freestats.com