400-500 people have already been arrested since Pakistan's President Pervez Musharraf declared a state of emergency just after midnight this morning, most of them opposition leaders, lawyers and rights’ activists. (Photo: B.K. Bangash for AP)
Many major news stations, including international channels like the BBC and CNN were suspended and the Supreme Court was shut down. The Court was to rule shortly on the legality of Musharraf’s reelection; Musharraf claims it has released 61 men being investigated for terrorism. Quoting Abraham Lincoln, Musharraf claimed the emergency – and related rights limitations – were necessary to limit terrorist attacks and, oddly, to "preserve the democratic transition" he claims to have initiated 8 years ago in taking power from the elected president in a bloodless coup. (Video of Musharraf's invocation, in English, of Lincoln is available just below this post; Diane's comments on that invocation are just below the video.)
Now, let’s take a look for a moment at international law and Musharraf's claim:
The purpose of a state of emergency is, indeed, to preserve democracy when it is threatened. That is, a state whose existence (or existence as a democratic state) is threatened may declare a state of emergency and take measures that restrict certain fundamental rights, with the sole purpose of restoring the status quo as quickly as possible. Under the International Covenant on Civil and Political Rights of 1966, the state must follow certain procedures for its declaration of an emergency to be legal. To be legitimate, the measures it takes must be necessary and proportionate to the danger. “Proportionate” refers not only to the harshness of the measures, but to their duration and territorial reach. In sum, a state of emergency is supposed to be a short-lived shift in the normal democratic balance of power, both between branches of government and government and the people, deemed necessary to recover from a crisis.
Pakistan is not a party to the Covenant, but I would argue that the theory of emergency powers and the rule that rights’ limiting measures must be necessary and proportionate have been around so long and cited so broadly (if, like torture, more often respected in the breach than in practice) that this rule now amounts to custom. In addition to these rules, a state of emergency is seen as illegitimate and fast-heading towards a dictatorship when democratic institutions – particularly the judiciary – are imperiled. Besides arresting about 80 lawyers, Musharraf removed the entire Supreme Court and swore in four “loyal” justices, and replaced judges in the regional High Courts as well. Opposition lawyers claim, however, that the 4 new Supreme Court justices were the only ones the government could find out of the 17 available who would accept being sworn in. In addition, the parliamentary elections planned for January 2008 have been postponed, perhaps for a year. When Parliament stops functioning independently, what UN special rapporteur Leandro Despouy calls “institutional degradation” sets in and democracy, far from being restored, is paralyzed by the state of emergency.
Now, in the first report I read this morning (which is no longer online), I could have sworn I read Condoleezza Rice being quoted as saying that the US would not be able to support Musharraf’s move. Reports a few hours later say that the US is not suspending its aid to the Pakistani military. Considering the illegality and illegitimacy under international law of the now 6-year-old US state of emergency with respect to the 9/11 attacks (unlike Pakistan, the US is a party to the International Covenant) (see, for ex., Diane Marie Amann, “Le dispositif américain de lutte contre le terrorisme”, Revue de Science Criminelle, 2002-4, 745-764; my dissertation on the subject may not ever be published), the Bush administration’s continued military support during Pakistan’s self-induced crisis is disappointing, but somehow, not a surprise.