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Commentary: When Liberty Is on the LinePakistan's lawyers have said yes, the rule of law is worth putting ourselves in danger
For the past week in Pakistan, it has been lawyers who have led the fight for freedom. Moving their arguments from the barricaded courthouses to the streets, they've battled tear gas and baton-wielding police to protest President Pervez Musharraf's suspension of the country's constitution and ouster of its Supreme Court. Musharraf has accused the high court of hindering his government's efforts to fight terrorism. His real target, of course, isn't Islamic extremists, it's the rule of law.
Legal Times2007-11-14 12:00:00 AM
First thing we do, let's kill all the jokes. For centuries, Shakespeare's well-worn admonition about exterminating lawyers has been a favorite of everyone from landed barons to tort-reforming Toastmasters. In vain, defenders of the bar would protest that the words were actually spoken by Dick the Butcher, a murderous hooligan in "Henry VI, Part II," aligned with a would-be tyrant bent on stomping out opposition. The idea of lawyers on the front lines of liberty never gained much traction.But for the past week in Pakistan, it has been lawyers who have led the fight for freedom. Moving their arguments from the barricaded courthouses to the streets, they've battled tear gas and baton-wielding police to protest President Pervez Musharraf's suspension of the country's constitution and ouster of its Supreme Court.In his Nov. 3 declaration, Musharraf accused the high court of hindering his government's efforts to fight terrorism. His real target, of course, isn't the Islamic extremists making trouble in the border regions but the justices hearing challenges to his effort to extend his eight-year rule. As the lawyers saw immediately, Musharraf's real target is the rule of law.FINDING A VOICEPakistan's founding father, Mohammad Ali Jinnah, was a lawyer. Indeed, before turning to politics he was a famous advocate in India (much more accomplished than his rival, Mahatma Gandhi, who pursued his early legal career in South Africa). But the record of the legal profession in upholding civil liberties in Pakistan has been spotty at best. During a long succession of military juntas, members of the bar said little about the various legal transgressions of their government.That changed notably in 2005, when Iftikhar Chaudhry became chief justice of Pakistan's Supreme Court. Under Chaudhry, who is now under house arrest along with several of his fellow justices, the court began to challenge Musharraf's authority. It took high-profile public corruption cases, questioned the detention practices of the secret police and even weighed whether Musharraf could continue to serve as head of the military while president (it found that he could).But the real flash points came when the court ruled in August that Musharraf's rival, former Prime Minister Nawaz Sharif, could return from exile and then indicated that it would review the legitimacy of a sham election in October that kept Musharraf in office. On Nov. 3, Musharraf issued his emergency decree and removed the justices from the bench.That Pakistan's lawyers once again donned their black suits and took to the streets in protest is a measure of the robustness of a professional class that only recently began to spread its wings. (Earlier this year, lawyers rallied when Chaudhry was temporarily suspended.) But the phenomenon has implications far beyond Pakistan's borders.For many years now the West has bemoaned the lack of any force within the Islamic world that might serve as an indigenous counterweight to the growing influence of religious extremists and political authoritarians. Though lawyers might seem weak cousins compared with the inflamed mobs moved by religious certitude, what they represent -- a tolerant society based on a belief that all should be treated equally under the law -- is a very powerful idea fueled by the still-revolutionary principles of the Enlightenment.In the West, lawyers were essential in nurturing the body of thought that took us from the Magna Carta to Miranda rights. Not long after 9/11, I asked the noted Islamic legal scholar Khaled Abou El Fadl whether lawyers might play a similar role in the future course of Islamic societies. His answer was telling: "That's not going to happen unless the legal class becomes sufficiently powerful and independent, so that it has more integrity. Right now you mainly have jurists who are paid by the government and so say whatever the state wants them to say."The events in Pakistan indicate that in at least one Islamic country, the legal class has finally found that kind of independence. And that has not gone unnoticed elsewhere in the Islamic world. As an editorial in Lebanon's The Daily Star put it, "It is the lawyers who hold the key to addressing the problem that Pakistan shares with the countries across the Islamic world. Secular or theocratic, republican or monarchist, all of them are deficient in that mortar which alone can hold disparate elements and interests of society together in a democracy: the rule of law."LEGAL EMPATHYOn this side of the world, lawyers quickly grasped the stakes for which their colleagues were fighting. In a letter to Musharraf urging him to restore the ousted justices, William Neukom, head of the American Bar Association, wrote that while he appreciated "the serious challenges your government currently faces, it is in such situations that adherence to the rule of law is most important." Lawyers in the United Kingdom also responded strongly. "I can think of no starker demonstration of this commitment to the law than the extraordinary courage, fortitude, and bravery of the lawyers we see in Pakistan," said Andrew Holroyd, president of the Law Society of England.The response of the Bush administration, meanwhile, was fairly tepid and tentative in the days after Musharraf's declaration. President George W. Bush finally issued a statement on Nov. 7 calling for Musharraf to hold parliamentary elections and stop wearing his military uniform. Of course, Bush has never displayed any great fondness for the legal profession in his own country, so it may be unrealistic to expect him to feel much sympathy for lawyers a world away, particularly ones who are giving a key ally in the war on terrorism a hard time.But if there was any doubt that Musharraf looks to America for guidance, he dispelled that by citing U.S. legal precedent to justify his own actions. In suspending the Pakistani constitution, Musharraf cited Abraham Lincoln's suspension of habeas corpus during the Civil War. And Pakistani commentators noted that Musharraf's ouster of the justices was similar to Franklin Roosevelt's Court-packing scheme. Those citations should be a lesson to any who think that domestic decisions taken by America's political leaders have no resonance in the rest of the world.The lessons can run both ways. Certainly, Pakistan's legal profession has offered a compelling example to American lawyers about what it means to stand up to power and fight for civil liberty. Likewise, Musharraf has given us a glimpse of how an unfettered leader sets about disbanding a civil society in the name of fighting terrorism. The first thing you do is get rid of the lawyers. Just ask Dick the Butcher.