JURIST Contributing Editor Ali Khan of Washburn University School of Law says General Pervez Musharraf's declaration of emergency in Pakistan has created a situation of lawlessness in the country that may actually prompt another military coup…

On November 3, Pakistan took its turn at playing the Dark Future — a lawless game of alternate reality, a game in which the nation falls apart, the laws break down, and the players commit high crimes and misdemeanors to get ahead, to win. On this reckless day, Army Chief Pervez Musharraf, perhaps after receiving a signal from Washington D.C., proclaimed emergency throughout Pakistan and ordered that "the constitution shall remain in abeyance."

Article 232 of the Pakistan constitution allows the President to issue a Proclamation of Emergency under grave circumstances. The November Proclamation, however, has been issued by Pervez Musharraf as the Army Chief, and not as the President. This legal twist empowers the Army Chief to exercise more authority than a constitutional Proclamation of Emergency would otherwise allow. The constitution does not authorize an Army Chief to declare emergency. Nor does the constitution allow a wholesale termination of services of Supreme Court judges. On its very face, therefore, the November Proclamation is incompatible with the constitution. It is by all means an extra-constitutional coup.

Disestablishment of the Judiciary

The coup specifically targets Pakistan's judiciary. The judiciary, which was making a successful transition toward independence, has been stopped in the tracks. The Proclamation offers twelve reasons for the suspension of the constitution. Six reasons lay blame on the judiciary, holding the judges responsible for releasing terrorists, working at cross purposes with the government, overstepping the limits of judicial authority, and placing judges beyond accountability. These charges against the Supreme Court, in the opinion of the nation's most respected lawyers, are exaggerated and erroneous.

Judges throughout the country are divided over supporting the suspension of the constitution. Judges who depend on their jobs for supporting families are unable to defy the Proclamation. So far, however, only four out of the nineteen Supreme Court judges have taken the oath under the Provisional Constitutional Order (PCO). A pro-military judge, under investigation for corruption, has been made the Chief Justice. Numerous judges of the four provincial high courts have also declined to take oath under the PCO. This unprecedented judicial resistance to the Proclamation will continue.

The disestablishment of the judiciary will further deepen when lawyers boycott appearing before what they call "traitor judges." The lawyers are unlikely to boycott lower courts where ordinary cases are litigated. They will continue to seek relief for political workers who are unlawfully arrested. Some lawyers will continue to expose the abuses of power even in high courts.

A permanent harm to the judiciary may be spared if judges are united in their resolve to oppose the Proclamation. Even judges who have taken the oath under the PCO can play an important role in limiting the lawlessness that the Musharraf regime may commence to enforce its writ.

Terrorism Unbounded

Escalating terrorism is the other reason offered for suspending the constitution. The Proclamation highlights heinous terrorist activities, IED explosions, and suicide bombings that have bedeviled the government. These reasons are tendered to persuade Americans that a non-democratic regime in Pakistan is good for America.

America understands that an unlawful government in Pakistan is a godsend for terrorists. Despite deceptive appearances of cooperation with the United States, Pakistani intelligence agencies team up with militants to inflict harm on American soldiers. A vast geographical area spanning through the four contiguous Muslim countries – Iraq, Iran, Afghanistan, and Pakistan – furnishes militants unlimited breathing space and logistical support for planning and executing reprisals. Frustrated American forces may now be allowed to openly attack militants inside Pakistan. This course of action however will be imprudent.

It is totally understandable, though morally discomforting, that the United States is using Pakistan for its own national benefit. No Kantian imperative dictates that American foreign policy must treat Pakistan as an end in itself and not a means. Still, wiser heads in Washington will refuse to destabilize Pakistan to win an elusive war on terrorism. Time is ripe for America to support democracy in Pakistan to win the hearts and minds of its population. Saving Musharraf is a liability that the United States cannot afford.

Another Coup?

Meanwhile, Pakistan abounds with rumors and speculations that another military coup is imminent. In the past sixty years, Pakistani army chiefs have staged revolutions on the theory that the armed forces are highly disciplined in that no mutiny raises head in ranks and files once the army chief makes a decision to suspend the constitution. This theory may not work this time since Musharraf has become a pariah both outside and inside the armed forces.

Outside the armed forces, Musharraf has no constitutional or political cover. The constitution has been effectively suspended. The Supreme Court has been effectively dissolved. The existing national and provincial assemblies would soon complete their terms and cease to exist. Ironically, though, a constitutional proclamation of emergency allows the extension of the term of the national assembly by a year. Musharraf may invoke this provision of the constitution to extend the life of the existing Parliament and postpone the general elections due in January 2008. These measures will not stabilize Pakistan. Lawyers, political parties, and the media are determined to challenge the continuation of the Musharraf regime.

Things are worse inside the armed forces. Inside, Musharraf is viewed as a crass political operator. He is no longer a professional soldier. His uniform annoys the armed forces. It is no symbol of pride. It is a symptom of addiction to power. Furthermore, the armed forces resent ground realities. Soldiers have been placed in predicaments to kill innocent villagers. They surrender to the militants, saying brothers don't kill brothers.

As world criticism mounts, lawyers boycott the courts, and confusion grips Islamabad, General Ashfaq Kiani, the designated army chief, will come under tremendous pressure to safeguard the honor of the armed forces and remove an ineffective addict from power. This coup may not be peaceful.

Ali Khan grew up in Pakistan and is a law graduate of Punjab University, Lahore. He is currently a professor at Washburn University School of Law in Kansas. His publications are available here.

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