Saucers of Mud

November 4, 2007

A City upon a Hill

Filed under: Uncategorized — matt w @ 9:19 am

One phrase jumped out at me in this account of Musharraf’s suspension of the constitution and increasingly severe crackdown:

Meanwhile, Musharraf’s chief spokesman defended the emergency declaration on judicial activism by Pakistan’s Supreme Court, including the setting of airport parking fees and releasing of terror suspects.

“Things had gone totally haywire,” Khan earlier told CNN Sunday.

More on the subject here (though I don’t know about the source) and here. [UPDATE: And here from Barnett Rubin, reporting on Musharraf’s equation of the judiciary and terrorists.]

Now the first thing to be said here is that the main driver of events in Pakistan is surely internal Pakistani politics and Musharraf’s lust for power. I don’t know if the US could have done anything to avert or discourage this auto-coup, and Condoleezza Rice has at least been making appropriate tut-tut noises in public about it. (An improvement over Bush’s reaction to Musharraf’s first coup.)

Nevertheless, it’s worth noting how a virulent trope from American political discourse has spread internationally, and has attained its pure form abroad. “Judicial activism” is of course a phrase American right-wingers use to mean “Judgifying we don’t like.” The invocation of judicial activism is meant to support The People against evil judges, but it’s actually an attack on the rule of law: The idea is that it’s bad for judges to force the legislature and/or executive to follow the laws that they have to follow, particularly the constitution.* In the US this has led to a bill of attainder intended to erase a court decision Republicans didn’t like (without changing the underlying law), accompanying veiled threats against judges, and the attempt to deny terrorist suspects any judicial review.

But Musharraf really has taken the rhetoric of judicial activism to its logical conclusion. He didn’t like the judges’ interpretation of the law on terrorist suspects (and, incidentally, on his illegal run for reelection), so he has suspended the law completely. The Supreme Court justices he doesn’t like are under house arrest. The police have a list of 1,500 political activists and lawyers to be arrested. The press is banned from saying “anything which defames or brings into ridicule the head of state, or members of the armed forces, or executive,legislative or judicial organ of the state.” And the justification is that Musharraf has to do this to protect Pakistan’s democratic traditions from judges and terrorists — because when judges enforce the law, sometimes people who are accused of being terrorists go free.

As I said, it seems likely to me that this would’ve happened no matter what the U.S. did. But it’d be nice if we hadn’t provided Musharraf the template for justifying the end of the rule of law.

*This isn’t to say that the rule of law requires judicial supremacy, but that’s not the issue here.

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