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.



  1. Some background on the Constitution. Also: I found this post, and the other “Tick Tock” posts linked at the bottom of that post, helpful.

    Comment by eb — November 4, 2007 @ 8:07 pm

  2. As Hilzoy notes, this news is not all bad if you work for the Bush administration.

    Comment by The Modesto Kid — November 5, 2007 @ 10:07 am

  3. In all fairness, the comment Hilzoy notes sounds like something that someone might have said as a bit of black humor that winds up out of context in a news story. OTOH, anyone in the admin deserves no credit whatsoever.

    I see Barnett Rubin is pretty much taking the same line on “judicial activism,” which makes me feel vindicated. Definitely read his post.

    …Oh my God, when I first saw the word “lawfare” I didn’t realize that it was a term invented by its proponents.

    Comment by matt w — November 5, 2007 @ 10:32 am

  4. No wait, it’s that the right-wingers are accusing terrorists of using “lawfare” by using the courts as well as terrorism. That’s, um, still Orwellian, but not in exactly the way I thought.

    Comment by matt w — November 5, 2007 @ 10:35 am

  5. Hey, if suspending the Constitution and rounding up the judges is what it takes to reduce airport parking fees, count me in.

    Comment by Ben — November 6, 2007 @ 5:05 am

  6. All the whining about ‘lawfare’ sounds especially lame when you consider how often the President declares that his goal with respect to terrorists is to ‘bring’ them ‘to justice.’

    Comment by CharleyCarp — November 10, 2007 @ 1:39 pm

  7. Could it be that there’s some kind of distinction going on here between Bush’s use of “justice” and “law,” in the same way that there’s a distinction between his use of “freedom” and “democracy”? I can’t find the link offhand, but there was a great piece a while back about how Bush (and I think many of his neocon advisors) never actually talked about spreading democracy, but only about spreading “freedom.” And his idea of “freedom” (as expressed in his vision of Iraq) included things like flat tax rate, support for Israel, and generally the government doing what he wanted, and it didn’t include so much of the messy stuff about allowing local elections. (Which at the time weren’t necessary as a propaganda instrument.) This can also be seen in the treatment of the Palestinian Authority — “freedom” doesn’t mean electing a government Bush disapproves of.

    Similarly, “justice” for Bush may mean “what I want to happen to these people will happen to them.” (“I want justice. And there’s an old poster out West, I recall, that says, ‘Wanted: Dead or Alive.'” Not that I’d object to bin Laden being killed if we couldn’t catch him.) And that needn’t have anything to do with following the rule of law. Remember, before “Enduring Freedom” the war in Afghanistan was called “Infinite Justice.” And a puny instrument like the rule of law couldn’t dispense anything more than finite justice.

    Comment by matt w — November 10, 2007 @ 2:31 pm

  8. Well, I think ‘bring to justice’ has a specific meaning in English, and that the President and his cheerleaders are perfectly willing to use the term, knowing of that meaning, while having no intention of putting accused terrorists on trial.

    I also think that the President is very seriously confusing the desires of the Almighty with his own, and is comfortable with the idea that he is indeed dispensing divine justice.

    Comment by CharleyCarp — November 11, 2007 @ 12:23 am

  9. I also think that the President is very seriously confusing the desires of the Almighty with his own

    I’d say he does that perennially. Too lazy to look it up now, but hasn’t he said things like “Whatever the president says is legal is legal,” and “We don’t torture because we’re the good guys and the good guys don’t torture”? Not recognizing that there’s an external constraint on his actions — his actions are supposed to live up to standards, they don’t define them.

    And if he identifies the desires of the Almighty with those of his own, that explains why he gets so snippy whenever anyone gets in his way.

    Comment by matt w — November 11, 2007 @ 7:05 am

  10. Whatever the president says is legal is legal

    Pretty sure that was Bush’s ideological forerunner Richard Nixon.

    Comment by The Modesto Kid — November 12, 2007 @ 11:16 pm

  11. Yes: in a 1977 interview with David Frost, he said “Well, when the president does it that means that it is not illegal.”

    Comment by The Modesto Kid — November 12, 2007 @ 11:19 pm

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