The Rule of Law Where Justice Proves Slippery

Some countries chronicle the past through their kings or presidents; others narrate tales of revolution and war. In Pakistan, however, history marches straight through the courtroom.

Whenever politics fail, politicians and their lawyers turn to judges to tidy the disarray. So when former Prime Minister Nawaz Sharif landed in jail after an army coup displaced him last fall, his subsequent trial was expected and, for most Pakistanis, so was his conviction. The big surprise came from U.S. President Bill Clinton, whose public plea for leniency in sentencing Sharif, made well before judgment was rendered by a Karachi court, exposed just about everything that is wrong in Pakistan, and in U.S.-Pakistani relations.

Clinton’s request occupied a few minutes of his five-hour visit to Pakistan, the coda to a whirlwind tour of India and Bangladesh. His lecture on the dangers of dictatorship to Pakistan’s military leader, Gen. Pervez Musharraf, was hardly news: Terrorism, fanaticism, fundamentalism, sectarianism and militarism are not abstract concepts in Pakistan, but dangerously familiar obstacles on an elliptical road to good governance. Clinton repeated his advice on television: Speaking directly to “the people of Pakistan,” who, of course, could not reply, he reminded them of the unassailable benefits of democracy. Then he went home, and Pakistanis returned to life with the army.

No doubt, Clinton meant well and, in light of Pakistan’s troubled past, thought he was being politically astute. The last time a civilian ruler--Zulfikar Ali Bhutto--was deposed by his own army chief--Gen. Zia ul-Haq--he was executed and, as the story goes, martyred. Because Pakistanis were reportedly jubilant when Sharif was overthrown, and because Sharif was tried under a law that provides for an almost mandatory death sentence, Clinton may have thought saving Sharif from the death penalty would salvage some hope for civil politics in Pakistan.

But a little knowledge is a dangerous thing, and the ignorance betrayed in Clinton’s inappropriate gesture is itself a gloss on the arrogance of U.S. power in South Asia. Washington radically misinterpreted the meaning of Sharif’s trial. In a country whose legal system regularly compromises the possibility of justice, Sharif’s trial was the latest exercise in political manipulation. His lawyer was assassinated; judges were changed; reports of witness tampering rose repeatedly; the bench complained about the indirect influence of intelligence agents who packed the courtroom; and basic rights protections were missing. That Sharif himself supports such laws--his policies suggested conviction is the shortest route to justice--does not alter the injustice that envelops his sentencing.

Sharif was tried for refusing to allow Musharraf’s plane to land, not for the flagrant misrule he is blamed for. Neither leniency nor clemency will set the stage for political reform; terrorism courts are not commissions for truth and reconciliation. Sharif was convicted by a civilian court that swears allegiance to the military. The Constitution is officially in abeyance and fundamental rights are said--but not as yet proved--to be in force. The Karachi verdict, conviction without death sentence, is being appealed by a government anxious for closure, not a U.S.-tainted negotiated settlement.

Pakistan’s judiciary, once its leading institution and best protection against the ravages of unrest and avarice, is in decline. The fault lies not only with increasingly pliable and, many insist, purchased judges, but even more with a political environment built on false promises. Pakistan has long lived on borrowed money, borrowed goodwill and borrowed time. Its location, convenient for those seeking a literal foothold during the Cold War and a figurative stepping stone in post-Cold War ideological contests, has allowed political and economic profligacy at the expense of a growing, and increasingly poor, population.

These are not problems courts are prepared to solve. Even in Pakistan’s early years, when judges were hailed as protectors of the new realm, courts reinforced those closest to power. Their sheer inventiveness established a unique jurisprudence that elegantly validated power. With time, of course, courts and laws became more complicated: Justice was sullied as much by eager judges trying to make sense of a complex world as by dictators keen to own the law and, if necessary, its defenders.

If Clinton had read Pakistan’s history carefully, he would have noticed three equally important things. First, justice is never a piecemeal affair. The country’s landmark constitutional cases have taught the citizenry, if not its leaders, the frequently incompatible arts of civics and power. Courts rarely vindicated individuals but often validated the changing mores of state and society. When Pakistan’s politicians used courts as confessionals, courts remained integral parts of the political landscape. And when dictators used them to wage war on civilians, Pakistan’s superior judiciary has occasionally acquiesced, but more often chosen to hibernate until political winter ends. After all, judges are killed in Pakistan, but they’re meant to be civil servants, not heroes.

Second, the rule of law is not given, but created and re-created every day by those who live with it. It is the rare military leader who believes order emanates from law, and Musharraf’s actions underscore an abiding interest in control more than political participation. The political-science experiments that comprise his agenda are variations on familiar themes: local elections that disenfranchise political parties, free press without enforceable rights. Pakistanis may have been unhappy with their elected leaders, but they’re likely to be equally unhappy with anyone who rules without asking their permission.

Third, old habits die hard. U.S. human-rights policies have rarely helped Pakistanis restore civilian politics, and then only when it suits U.S. policy to ignore the generals who are often its closest friends. Democratic dogma turns to doggerel when, as policymakers are wont to say, interests converge. The issues that remain on the U.S.-Pakistan agenda--until business as usual resumes--are the kind armies can manage more easily than parliaments, and without the burdens of transparency: narcotics, terrorism, arms trafficking, nuclear safety. If they become business as usual, as the swelling ranks of ministerial visitors to Washington suggest, then the U.S. will quickly stop its talk about democracy.

One last thing. It’s not a good idea to anticipate convictions or prejudge sentences, unless you’re prepared to seek justice for everyone judged unfairly. That’s what human-rights policy is about. Otherwise, it’s just special pleading, and that’s no policy at all. *