LAHORE, PAKISTAN — On November 3, members of the Pakistan Supreme Court took the unusual step of spending the afternoon at court amidst rumors that President-General Pervez Musharraf was planning to declare a state of emergency. The court was set to rule on a case challenging his eligibility to be re-elected as president and Musharraf feared the judgment would not be in his favor.
As night fell, police surrounded the Supreme Court and all foreign and private domestic television channels were pulled off the air. I was at home in Lahore when, at six o’clock, the state-run PTV announced the promulgation of a Provisional Constitutional Order holding the constitution in abeyance.
Then something extraordinary happened. For the first time in Pakistan’s history, the Supreme Court refused to validate the coup d’etat, instead issuing an order holding the PCO unconstitutional and directing the judges and civil servants to uphold the constitution. The court’s action was the fruit of the mass movement organized by lawyers over the summer of 2007 to reinstate ousted Chief Justice Iftikar Mohammad Chaudhry.
Chaudhry was removed by Musharraf in March, supposedly for corruption, but most people believe that Musharraf felt uncomfortable with the Supreme Court’s new independent streak and wanted to install a more pliable judge in the lead-up to the presidential elections. Chaudhry was reinstated in July by his colleagues on the Supreme Court following large demonstrations.
It was this movement that brought me to Pakistan last May. I was intrigued by images of suit-and-tie-clad lawyers marching and chanting slogans. I traveled with members of the Supreme Court Bar Association (SCBA) in June to Abbotabad to hear Chaudhry speak.
The images were astounding — rows and rows of lawyers chanting slogans in support of the independence of the judiciary. Chaudhry arrived at 1 a.m., but his tardiness did not dampen the spirit of the thousands who had gathered to hear him speak. More amazing to me was the scene in the streets outside the open-air auditorium (only lawyers were permitted inside). Ordinary Pakistanis sat by the hundreds, listening to the scene inside and watching Chaudhry’s speeches on closed-circuit television. This was Pakistan’s first taste of a mass movement disconnected from the whims of any one political party.
Significant gains were made by the judiciary in 2007. In my work for the Human Rights Commission of Pakistan (HRCP), I track prison conditions and disappearances. Over the course of the year, the Supreme Court and the provincial high courts began to hold police accountable for torture in prison, which is widespread, and the judiciary secured the release of hundreds of victims of enforced disappearances. But the military reigns supreme in Pakistan, and it was the judiciary’s expected refusal to bow to Musharraf’s demands for another five-year term (clearly prohibited by the country’s 1973 constitution because of Musharraf’s military position) that led to Musharraf’s judicial coup.
The same lawyers who fought for Chaudhry’s reinstatement are now fighting an even more important battle for the rule of law in Pakistan. The day after the imposition of de facto martial law, supporting the lawyers’ movement was a primary topic of an HRCP meeting on the situation. Later, after the police surrounded HRCP’s offices and arrested all those attending the private meeting, discussions continued in jail about what could be done to support the lawyers and the judges who had refused to support Musharraf’s regime (60% of the judges in the Supreme Court and the provincial high courts resigned following the coup).
It is our colleagues here who have borne the brunt of the immense crackdown that followed the imposition of martial law. It will likely be several months before the full scale of the crackdown will be known. One government minister stated that nearly 6,000 had been arrested, but opposition leaders estimate that more than 15,000 have been detained.
Three protesters were shot in Karachi, including two young children. Lawyers have been detained in death cells — a particularly gruesome imprisonment usually reserved for those awaiting execution. Other lawyers have been tortured. Journalists have been baton-charged. Members of civil society attending private, indoor meetings have been arrested by police in riot gear. The crime? Discussing how to hold the military government accountable to the terms of the 1973 constitution and to enforce the last valid order of Pakistan’s Supreme Court.
Although the bulk of those arrested have been released, others remain imprisoned or under house arrest, including all the ousted members of the Supreme Court. Senior leaders of the Supreme Court Bar Association have been held incommunicado.
The treatment of these political prisoners has been atrocious. My colleague, Muneer Malik, former SCBA president who represented Chaudhry in his successful bid for reinstatement, was denied medical treatment while in prison. As a result, he suffered renal failure and was evacuated to the hospital for dialysis, where he nearly died. His illness was entirely preventable. Now, he might be on dialysis for the rest of his life.
Lawyer Khurram Latif Khosa at a November
30 protest organized by the Lahore Student
Action Committee. Photo by D. Theriot-Orr.
Joining a long tradition of American leaders turning their backs on massive human rights abuses by puppet regimes, President Bush stated that Musharraf has not yet “crossed the line.” Make no mistake about it, if America threatened to withdraw military aid from the regime, Musharraf’s junior officers would send the general packing.
Musharraf has accomplished what he set out to do. His freshly minted Supreme Court has approved his reelection and validated the coup, criticizing the “activist judges” of the Supreme Court for — incredibly — acting “unconstitutionally.” Musharraf has “amended” the constitution, inserting clauses divesting courts of jurisdiction to review all acts relating to martial law.
Each of these acts is clearly unconstitutional and would be unwound at the stroke of Chief Justice Chaudhry’s pen. But without the restoration of the judiciary, Musharraf’s second coup will likely succeed, perhaps critically wounding one of the most important developments in Pakistan’s attempt at democratic governance in years.
It is likely that Musharraf will cave to tepid demands from the West and roll back the emergency soon, at which point international attention may fade. Many here, including the fledgling student movement, have been disappointed that the international community has primarily called for a rollback of the emergency without strongly advocating for the reinstatement of the judiciary. International criticism must be refocused on the underlying issue: restoration of the rule of law in Pakistan.
International jurists, in particular, have an important role to play. Musharraf’s acts must not be viewed in isolation, but recognized as a direct assault on the rule of law globally. There are international delegations being organized by the newly-formed Rule of Law Project at a leading local law school that will require labor from jurists (in the form of research and report writing), as well as financial support to cover project costs.
Solidarity demonstrations are an important component that have received widespread coverage here and are an inspiration to those resisting military rule. Finally, we must put pressure on our governments to unequivocally condition all further military aid on the restoration of the judiciary.
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Devin T. Theriot-Orr is finishing a research fellowship at the Human Rights Commission of Pakistan and is the director of the Rule of Law Project at the Lahore University of Management Sciences.
