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One of the major reasons for Musharraf's Nov. 3 imposition of a state of emergency, which is another name for martial law, was to make the country's Supreme Court inoperative. Quite openly, he appointed alternative judges who he quite unashamedly expected to confirm his election as president, thereby bringing the courts under his complete control. The complete control of the judiciary is considered an imperative in the new political scheme he has introduced in Pakistan.
During the weeks of the emergency, Musharraf has asked the press in public whether it is democracy that is important or the nation. He has not surprisingly answered his own question: It is the nation! Quite clearly, he considers democracy as a danger to what he refers to as "the nation."
In dealing with the judiciary, he has taken this a step further. He also considers the rule of law as a danger to the nation. Thus, he is clearly giving expression to a concept of the state which recognizes neither democracy nor the rule of law. He expects the very fabric of Pakistani society to go through a fundamental change where it has to follow what a single ruler thinks is fit for the nation. The closest parallel that exists for this type of nation in the present context is North Korea.
The people of Pakistan and the international community are forced by Musharraf to consider one important question: Can there be any credible form of rule of law without the independence of the judiciary? In fact, the people of Pakistan, as well as the international community, should have considered this issue at a much earlier stage. Now to ignore this question will imply extremely frightening consequences.
As for the people of Pakistan, it can be said that during 2007 they did try to grapple with this problem by trying to save the judiciary to protect the security of their country from a descent into lawlessness. Their judges, lawyers and literally millions of people went into the streets in order to defend the ousted chief justice, Iftikhar Chaudhry.
They succeeded temporarily. It was then that General Musharraf unleashed emergency rule and displaced the judiciary; but to do that, he had to crack down and imprison thousands of lawyers and political protestors. However, despite all of the protests and international condemnation, Musharraf is determined to bring the independence of the judiciary to an end.
Human rights organizations have previously observed on many occasions that in recent times one of the prominent strategies of tyrants has been to displace judicial institutions and thereby make the rule of law a practical impossibility. There is very little meaning in having laws if they are not administered through a credible justice system.
There is no better way to destroy a credible justice system than to eliminate all possibility for an independent judiciary. It is only independent judicial institutions that make the proper operation of the rule of law possible. To remove this institution is like halting the functioning of the spring in a clock and thereby making it dysfunctional.
Musharraf's ideological claim is that he is no friend of terrorism and even further that he is the best option available for Pakistan and for the international community to fight terrorism. However, nothing supports terrorism more than lawlessness, and Musharraf, in creating a state of lawlessness in the country, has become the best friend that any group of terrorists might have. The resulting anarchy not only makes the lives of the people of Pakistan harder by creating enormous difficulties in all areas of normal life and social order; but by producing such anarchy, the climate that is most conducive to terrorism is also created.
The people of Pakistan, including the political parties, are today engaged in a critical struggle against Musharraf's political scheme. They demand the lifting of the emergency and the reinstatement of the ousted chief justice and the Supreme Court judges who refused to take an oath under the emergency regulations.
In this extremely critical moment, the fight for democracy and the rule of law are now in the hands of these protestors. Their protests are not only legitimate but are also very vital in preventing the final collapse of Pakistan into lawlessness.
The international community has not yet shown adequate will to support the reinstatement of the ousted Supreme Court of Pakistan and to prevent the scheme of appointing a completely subservient judiciary of people handpicked by the general. It is incomprehensible that the international community could think of Musharraf as a protector of Pakistan's stability and as a necessary ally in the fight against terrorism. Such an ideological stance is divorced from reality.
The stability of Pakistan depends on creating the possibility of the rule of law through the protection of the country's judicial institutions. To allow these judicial institutions to perish and hope that there will still be stability is a pipe dream.
The human rights community should unequivocally support the struggle for the independence of the judiciary and the rule of law in Pakistan and should continue to condemn the violence unleashed by Musharraf against the country's premier judicial institution -- the Supreme Court of Pakistan. Human rights activists must call upon the international community to unequivocally support the struggle of the people of Pakistan to defeat the political scheme of Musharraf.
One day history will judge whether, at the point of Pakistan's final plunge into lawlessness, it was still possible for something to be done and whether the international community did everything it could to prevent it or just contributed to the collapse by their silence. The simple test of what might happen is whether the ousted Supreme Court of the country will be reinstated or not.
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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.)