Civil Society and the Lawyers' Movement of Pakistan, Sahar Shafqat

Taiwan's state transformation was a long, incremental process that involved all the three legal professions of judges, prosecutors, and lawyers. By contrast, in the case of Pakistan, the lawyers' movement was a shorter, more conspicuous event, but it also involved a coalition of lawyers, judges, and civil society activists.

This article examines the 2007-2009 lawyers' movement in Pakistan in order to explore the conditions under which judiciaries become politicized under authoritarian regimes. The conventional wisdom on judicial politics has tended to exclude judicial actors as agents of democratization, but there is a growing body of work that recognizes that courts and lawyers can play a democracy-affirming role even in authoritarian regimes. The lawyers' move­ment arose in March 2007 in response to General Pervez Musharraf's uncon­stitutional sacking of the Pakistan Supreme Court Chief Justice Iftikhar Chaudhry. Remarkably, the movement, which was led by lawyers but also included citizen groups, students, women's rights activists, religious groups, and political parties, was able to challenge the Musharraf dictatorship success­fully. Although it is referred to as the “lawyers' movement,” it was a prodemoc­racy movement that came to represent the multiple and sometimes competing goals of judicial independence, antimilitary dictatorship, and civilian electoral democracy. It played a crucial role in the return of democratic politics, the eventual ouster of Musharraf, and the reinstatement of the Chief Justice in 2009. Pakistan's case provides an opportunity to examine the ways in which judiciaries become politicized in authoritarian regimes, and the role that lawyers and judges can play in assisting the democratization process.

This article argues that under the right conditions judicial actors can play an important role in the democratization process. In the case of the Pakistani lawyers' movement, several conditions helped embolden an erstwhile proes­tablishment judiciary under the authoritarian regime. When the regime attacked the judiciary, the lawyers' community organized to defend the interests of the legal community, but it was not until the regime imposed an Emergency that the legal community joined forces with other civil society actors to push for democratization. Civil society, defined here as nonlawyer citizen activist groups, played a vital role in helping the judiciary become politicized, and in linking the lawyers' movement to the larger political cause of democratization. By helping to position the movement as a broad national prodemocracy movement rather than a movement narrowly focused on the professional interests of the legal community, civil society played a crucial role in helping the Pakistani lawyers' movement succeed. I argue that without this important factor, the lawyers' movement would have been unable to act as the vanguard of the movement to oust the dictatorial regime of General Pervez Musharraf, which eventually led to the restoration of democracy. [...]

The Pakistan lawyers' movement can be divided into five phases: mobiliza­tion, confrontation, resistance, reorientation, and revival.

Phase I: Initial Mobilization (March-July 2007)

The first phase of the movement took place after General Musharraf placed ChiefJustice Iftikhar Chaudhry under suspension (against procedural norms), following a legal reference against him.

Phase II: Confrontation (July-November 2007)

The period after Chaudhry's initial restoration was a period of increasing confrontation between the Musharraf regime and the judiciary. The fulcrum of this tension was Musharraf's decision to contest the election for the presidency. The Pakistani Constitution places limits on military personnel holding public office. Since 2002, Musharraf had held the dual offices of Chief of the Army Staff (a military post) and president (constitutionally, a civilian political post). Musharraf had managed to do this by passing amend­ments to the Constitution, and the Supreme Court, consistent with its histor­ically proestablishment role, upheld these changes, but now, Musharraf indicated that he would run for another five-year term when his term was up in October 2007. Lawyers, civil society groups, and opposition political parties filed legal petitions against Musharraf's eligibility to run for office. The court was about to rule against Musharraf on November 3 when he imposed the Emergency, sacked all the members of the higher judiciary, and demanded that they take a fresh oath of office under a new Provisional Constitutional Order (PCO).

Phase III: Emergency and Active Resistance (November 200y-February 2008)

The Emergency measures Musharraf imposed targeted more than just members of the judiciary; the regime also began arresting thousands of lawyers and issued a crackdown on the media, especially the electronic media, which he had found so nettlesome. This presented an opportunity for civil society activists to mobilize against the regime, and this renewed attack also con­vinced the lawyers' leadership that independence of the judiciary was now possible only with the removal of Musharraf and a return to civilian rule: in other words, democratization. For example, Munir Malik, one of the main lawyers leading the movement, noted that:

After the 20th of July, when the Chief was restored, there was a section [of lawyers] which said OK, [Chaudhry] has been restored, the movement is over. But we said no. We should look at what has caused this in the first place. That was the lack of constitutionalism, the lack of civilian supremacy.

Thus, the mobilization of lawyers and civil society activists intensified. The main political parties became louder in their opposition to Musharraf. Protest activity, tentative at first, became bolder, especially as it became clearer that even Musharraf s external patron, the United States, was alarmed at his actions and his seeming inability to transition smoothly to a “guided democracy.” Bar associations began mobilizing, organizing protests and rallies, and lawyers refused to appear before the PCO judges, viewing them as illegitimate. Meanwhile, the Chief Justice and his advisors tested the regime by continuing his tours at local bar associations. These tours quickly turned into opportun­ities for protest activity, as both lawyers and civil society activists would march with the Chief Justice's caravan for miles as it made its journey around the country.

A few events during this period helped catalyze important political shifts. First, there was the assassination of former Prime Minister Benazir Bhutto in December 2007, which shocked the nation and also threw previous political deals into turmoil. Second, Musharraf was pressured not just by movement activists, but also by his supporters in the army as well as in the United States, to step down as Chief of the Army in order to remain president, to retain at least some semblance of constitutionality. Musharraf resigned his military post in late November 2007, which was a great victory for the movement.

Phase IV: Pivot and Reorientation (February-August 2008)

Elections were held in February 2008, and the Pakistan People's Party (PPP), which was now chaired by Bhutto's widower Asif Ali Zardari, was swept into power on a sympathy wave. Zardari was not held in high esteem by some in the party and in the country, and people focused their anger on a deal between Bhutto and Musharraf, which had been formalized in the National Reconciliation Order (NRO). The NRO was deeply unpopular among Pakistanis and was being challenged in the courts. A truly independent judiciary that might challenge the NRO on constitutional grounds posed a danger to Zardari as well as to some other PPP leaders, so the PPP government resisted taking action on this matter.

The postelection situation was confusing at best for movement leaders, and cracks began to show within the lawyers' community, as well as between lawyers and their civil society compatriot. The movement had directly helped force Musharraf to resign as army chief and enabled democratic elections to go forward; however, it was one thing to oppose a military dictator; but another entirely to go against an elected civilian government.

In June 2008, as the PPP government continued to resist restoring the judiciary, the lawyers leading the movement decided to hold a Long March culminating in a dharna (sit-in) in Islamabad to demand the restoration of the high court judges to their positions, and the removal of the PCO judges.

Phase V: Retreat and Revival (August 2008-March 2009) After the failure of the 2008 Long March, many movement activists privately believed that restoration was a lost cause. Meanwhile, the main political parties continued to press for Musharraf's resignation, and in August 2008, he did so. In a transition heavy with symbolism, Zardari replaced Musharraf as president.

The movement might well have died there, save for some serious miscalcu­lations by the PPP government. In February 2009, Zardari dismissed the elected government in Punjab using his powers as president, providing the catalyst that the PMLN needed to oppose the PPP openly and to throw its weight behind the lawyers' movement. Movement leaders, emboldened by this fresh infusion of energy into the movement, scheduled another Long March in March 2009 to make a new demand for restoration. This time, the politics of the moment put the PPP government squarely in the cross-hairs of the movement, and although Zardari made furious attempts to prevent the march from taking place, he was eventually forced to accept the demands of the movement and restored all the judges who had been sacked under the Emergency, although in a compromise they had to serve truncated terms.

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