Immediately after taking office last month, Pakistani Prime Minister Yousuf Raza Gilani ordered the release of the 60 judges who had been detained by President Pervez Musharraf since November. This was a triumph for the rule of law in Pakistan, and above all a triumph for the brave Pakistani lawyers who took to the streets to protest Musharraf’s imposition of a state of emergency last fall.
The lawyers marched, sang, danced and exchanged their briefcases for signs and, occasionally, eggs and stones. As one Pakistani blogger wrote: “They danced in black coats and they danced in black ties. Their black coats their Kalashnikovs and their black ties their bullets.” In a world of color revolutions, Pakistan’s was clothed in the sober hues of the law.
In November, Musharraf effectively declared war on both the bar and the judiciary, dismissing all judges who refused to recognize his declaration of a state of emergency, purportedly aimed at protecting the nation from terrorists. The seven-member Supreme Court, headed by Chief Justice Iftikar Mohammad Chaudhry, countered by issuing an order barring the government from proclaiming emergency rule.
Musharraf dissolved the Supreme Court and the four High Courts, put Chaudhry and his entire family under house arrest, sealed the Supreme Court premises under army guard and proceeded to arrest and detain all judges who refused to swear allegiance to the Provisional Constitutional Order upholding the state of emergency. The result was the detention of most of the senior judiciary, as well as bar association presidents across the country and leading lawyers and human rights activists seeking to defend judicial independence.
In the ensuing protests, lawyers were routinely beaten, gassed, brutalized and humiliated. They stood with and for their judges, making it virtually impossible for judges willing to take Musharraf’s oath of allegiance to operate. The lawyer’s movement, it seems, drove a historic wedge between the judiciary and the executive.
Yet in Pakistan, the US and other countries, where lawyers have helped to lead fights for human rights and the rule of law, lofty ideals cloak an equally important set of interests.
The Pakistani lawyers were safeguarding their livelihoods as much as their principles. Lawyers cannot practice without judges to hear their cases.
And clients will not bring those cases unless they believe that the judges are independent enough to decide cases on their merits, rather than on the basis of bribes or political considerations.
These interests also help explain why Kenya’s lawyers were at the forefront of protests against the corruption of Kenyan President Daniel Arap Moi’s regime in the early 1990s, but much less visible in the eruption of tribal violence this past year.
Corruption corrodes the possibility of making a living through the law, which becomes a preserve of the rich. By contrast, in crises fueled by ethnic conflict, lawyers’ interests are not so clear.
Noting the convergence between ideals and interests does not in any way demean the Pakistani lawyers’ courage and the importance of their protests. America’s founders, for instance, fully understood that the two must go hand in hand. Their design for constitutional democracy ensured, in James Madison’s words, that ambition would counter ambition and “the interests of the man” would be “connected to the constitutional rights of the place.”