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Their love for the rule of law and their insistence on the independence of the judiciary have led the regime to consider these judges and lawyers "enemies of the state." However, the protests generated by all these actions have in no way subsided. The date of Jan. 31 has been chosen by the lawyers as "Iftikhar Day" -- named for ousted former Chief Justice Iftikhar Chowdhury -- with protests scheduled to take place all over the country against this tremendous repression of the judiciary, the legal profession and the rule of law in general.
President Pervez Musharraf has very clearly stated that these judges need to be suppressed in order to achieve what he refers to as "democracy." Though what he says may seem, at first glance, ludicrous, still his conception of democracy needs to be taken seriously and examined closely.
As he speaks plainly, it is not difficult to see his scheme for the future of Pakistan -- it must be a place where the president, as the chief executive, should be able to act unhindered by any other agency of the state or, for that matter, by any restrictions on his power. His vision can be put simply: achieving absolute efficiency through the use of absolute power by the chief executive. He, and he alone, must be the state. It is no exaggeration to compare his vision with that of King Louis XVI of France, who said, "I am the state."
In the president's view, these judges are a bunch of presumptuous fools who have failed to understand that their duty lies in demonstrating absolute loyalty to the president. They have also failed to understand that when they do not show such absolute loyalty they are, in fact, destabilizing the state and the country as a whole.
Judges, when they demonstrate their loyalty to the president, may have to incur displeasure from the public; but in the contest between the interests of the public and those of the president, it is Musharraf's view that the duty of the judiciary is to hold the balance in favor of the president. The people may have grievances, such as having to suffer forced disappearances of their family members. The public may also have to suffer naked aggression affecting their private properties and earnings.
Yet all these inconveniences, according to the regime's philosophy, should not be matters with which the judiciary should concern itself at all. The price to pay to maintain stability, in the way it is understood by the regime, is for the judges to stomach these absurdities and find suitable ways to ignore all other demands.
The same is true about pressure. The lawyers may bring pressure on the judges to uphold the law or even the Constitution, but the president, for what he considers to be the best interests of the nation, has abandoned the Constitution. From the judiciary, it is expected that they would have "political wisdom" to abandon all talk about the Constitution. When the contest is between the Constitution and the president, the regime expects the judges to hold in favor of the latter.
Militarism and constitutionalism cannot coexist. Therefore, the president thinks it is his duty to rid himself of those elements of the judiciary who are incorrigibly attached to constitutionalism. In the view of the regime, constitutionalism is a mindset that has to be discarded and replaced with a mindset that understands how important the president -- his way of thinking and his way of doing things -- is for the nation.
As this fantasy could not be implemented with the 55 judges who have now been forcibly retired, Musharraf has replaced them with new judges who are expected to understand this philosophy of the president and to faithfully execute it. Moreover, the new judges are expected to bury all notions about constitutionalism and all irrelevant talk about the rule of law. They must obey, and, in doing so, they will be able to bring stability to the nation. This obedience is what President Musharraf expects of them.
Musharraf is serious about being an absolute dictator and calls such a dictatorship a "democracy." Mild criticisms of him are a waste of time. When a superpower tries to create the impression that he may be an instrument that can bring about democracy, it, in fact, hides its own strategy to support the dictator, even when it very clearly implies the death of an independent judiciary and repression toward all those who demand reforms.
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(Basil Fernando is director of the Asian Human Rights Commission based in Hong Kong. He is a Sri Lankan lawyer who has also been a senior U.N. human rights officer in Cambodia. He has published several books and written extensively on human rights issues in Asia.)
