Above the Law

Four years ago, the struggle of Pakistani Chief Justice Iftikhar Muhammad Chaudhry and the "Lawyers’ Movement" against the government of Gen. Pervez Musharraf appeared to many Western observers a clear-cut case of an independent judiciary defending democracy against a military dictator. Today, the chief justice, with the support of many lawyers, is still engaged in a struggle with the government, but now the goal is to prosecute the elected president, Asif Ali Zardari, for past corruption.

This might seem perfectly in order, because allegations of corruption against Zardari have been widespread and credible. His immunity from prosecution stems from a 2007 decree issued by then-President Musharraf as part of a U.S.-sponsored deal to allow Benazir Bhutto and Zardari, her husband, to return to Pakistan and form a coalition with Musharraf and the Army.

Yet the chief justice’s actions — both in trying to prosecute the president and in charging the prime minister, Yusuf Raza Gilani, with contempt of court for failing to cooperate with the prosecution — also smack of an attempt to preempt democratic elections in Pakistan that are due within the next year. If these elections take place as scheduled, they will mark a significant milestone: the first time in Pakistan’s history that an elected government has made it through to the end of its constitutional term without being overthrown.

Although Zardari’s Pakistan People’s Party (PPP) will almost certainly suffer heavy losses in the parliamentary elections, it may do much better beforehand in indirect Senate elections, allowing the PPP — and conceivably even the president — to retain a large share of power. Many therefore suspect that Chaudhry’s real motive is a political one: to force the government out before these elections. While the chief justice is doubtless sincere in his passionate commitment to the independence and power of the judiciary, he is also conservative in background and believed to be extremely hostile to cooperation between Pakistan and the United States, as well as the role of the Zardari administration in maintaining this cooperation. It is unclear whether Chaudhry is close to the main opposition party led by Nawaz Sharif, but some of his subordinate judges certainly are.

A senior Pakistani official told me this week that the standoff between the executive and judicial branches was just a process of jockeying for position as these institutions gradually work out their respective places in the new democratic order. But others see it as a continuation of the institutional and political instability that has racked Pakistan since independence in 1947 and that could sometime in the future contribute to another collapse of democracy and return of military rule.

In recent years, other developments have led liberals to question their previous support for the chief justice and the Lawyers’ Movement. Most shocking was the public support of many lawyers for the assassination of Salman Taseer, the governor of Punjab, who in January 2011 was murdered by one of his own bodyguards for criticizing Pakistan’s blasphemy law, which has been repeatedly misused in private feuds and the persecution of religious minorities. A previous chief justice of the Lahore High Court himself justified this murder to me in an interview last year on the grounds that "the laws of God take precedence over the laws of man."

Pakistani courts have also repeatedly failed to convict terrorism suspects, even when the cases against them seemed clear-cut. They overturned both a ban on Jamaat-ud-Dawa — the public face of the militant group Lashkar-e-Taiba, which was responsible for the 2008 Mumbai terrorist attacks — and a detention order against its leader, Hafiz Saeed. In a recent case, they acquitted four Pakistani Taliban activists accused of an attack on the Inter-Services Intelligence (ISI) headquarters in Lahore. As many Pakistanis have told them, this kind of verdict not only undermines the entire struggle against terrorism in Pakistan, but also encourages extrajudicial executions by the police and Army. In this case, all four men were promptly detained by the ISI under special anti-terrorism laws. And within a few weeks, all were dead under very suspicious circumstances.

These verdicts reflect in part both fear of the terrorists and the extreme incompetence of Pakistani prosecutors and police to draw up charges that will stick in court. Based on my meetings with some lawyers and judges, however, these judicial decisions often reflect deep hostility to the United States and the "war on terror" as well — even when those being prosecuted have killed not Americans or Indians but fellow Pakistanis. In this, the judges and lawyers concerned are simply reflecting widespread feelings in the conservative middle class from which they are drawn. The clash between Chaudhry and Musharraf in 2007 originated in part with the chief justice’s (legally justified) attempts to investigate Pakistani actions in handing over detained terrorism suspects to the United States. Several local leaders and supporters of the Lawyers’ Movement whom I interviewed between 2007 and 2009 were extremely anti-American even by Pakistani standards, and they admitted that they were motivated to join the movement by outrage not just at the dismissal of the chief justice but also at Musharraf’s action in storming the Red Mosque, an Islamist militant headquarters in Islamabad.

The chief justice and many of the lawyers have become extraordinarily autocratic and extremely bad at cleaning up their own house. Chaudhry has issued suo moto (of his own volition) verdicts dismissing state officials, overturning government economic policies, and intervening in executive decisions against which nobody else has brought legal charges.

Lower levels of the judicial system are even worse. During two out of my three recent visits to Lahore, lawyers in that city have been filmed beating up policemen who have testified against their clients in court — and have then beaten up the television crews who dared to film them! Rarely are lawyers who break the law or openly forge their own certificates disbarred or even disciplined by their bar associations. The lower courts are notorious for their corruption, incompetence, and endless delays, and most Pakistanis loathe and fear them, preferring when possible either sharia law or the often brutal but quick, cheap, and accessible workings of local community justice.

This rather depressing story has a number of lessons. Firstly, Western news outlets and academics must examine yet again their chronic tendency to analyze developments in other countries according to simplistic Western frameworks and then assign the titles of "Goody" or "Baddy" to the participants. Yes, Pakistani reality is complex. But, then again, the United States (as well as Britain) has now been engaged in the war on terror — and hence closely engaged with Pakistan — for more than 10 years. That should have been sufficient time to develop greater knowledge and a more sophisticated analysis of Pakistan. Western journalists and analysts also need to break out of the trap of talking with educated Pakistani liberals who agree with them. The great Pakistani human rights lawyer and women’s rights advocate Asma Jahangir, so often quoted in the Western media, is indeed a highly admirable figure. Unfortunately, she is not a highly representative figure as far as her profession is concerned.

Chief Justice Chaudhry, nonetheless, does still have widespread public support as a figure who represents some kind of check on the frequently awful workings of government (whether civilian or military) in Pakistan and the endless oppression and extortion meted out to ordinary Pakistanis by officials and the police. Chaudhry emerged as the most popular figure in the country in a Gallup poll in October 2011, with 16 positive points, though his score was down a third from the height of his popularity in 2007 and 2008 due to perceptions of his partisanship. This illustrates a deeper truth, which has also been apparent in the revolutions of the Arab Spring: the deep hunger of ordinary people across the Muslim world for greater justice. This yearning reflects not only their daily experiences of injustice, but also the core teachings of Islam.

On the one hand, Westerners must sympathize with these aspirations, echoing as they do past Western struggles against oppression. On the other hand, the desire of ordinary Muslims for justice is often linked both to a belief in the ideal, divinely inspired justice supposedly represented by sharia law and to a conviction that the Muslim world as a whole is the victim of injustice perpetrated by the West. We ignore these sentiments at great cost.