Above the Law

Pakistan's activist lawyers and judges may have thrown out Pervez Musharraf, but they're no democrats. In fact, they're a grave and growing threat to Pakistan's future.

Four years ago, the struggle of Pakistani Chief Justice Iftikhar Muhammad Chaudhry and the "Lawyers' Movement" against the government of Gen. Pervez Musharraf appeared to many Western observers a clear-cut case of an independent judiciary defending democracy against a military dictator. Today, the chief justice, with the support of many lawyers, is still engaged in a struggle with the government, but now the goal is to prosecute the elected president, Asif Ali Zardari, for past corruption.

This might seem perfectly in order, because allegations of corruption against Zardari have been widespread and credible. His immunity from prosecution stems from a 2007 decree issued by then-President Musharraf as part of a U.S.-sponsored deal to allow Benazir Bhutto and Zardari, her husband, to return to Pakistan and form a coalition with Musharraf and the Army.

Yet the chief justice's actions -- both in trying to prosecute the president and in charging the prime minister, Yusuf Raza Gilani, with contempt of court for failing to cooperate with the prosecution -- also smack of an attempt to preempt democratic elections in Pakistan that are due within the next year. If these elections take place as scheduled, they will mark a significant milestone: the first time in Pakistan's history that an elected government has made it through to the end of its constitutional term without being overthrown.

Although Zardari's Pakistan People's Party (PPP) will almost certainly suffer heavy losses in the parliamentary elections, it may do much better beforehand in indirect Senate elections, allowing the PPP -- and conceivably even the president -- to retain a large share of power. Many therefore suspect that Chaudhry's real motive is a political one: to force the government out before these elections. While the chief justice is doubtless sincere in his passionate commitment to the independence and power of the judiciary, he is also conservative in background and believed to be extremely hostile to cooperation between Pakistan and the United States, as well as the role of the Zardari administration in maintaining this cooperation. It is unclear whether Chaudhry is close to the main opposition party led by Nawaz Sharif, but some of his subordinate judges certainly are.

A senior Pakistani official told me this week that the standoff between the executive and judicial branches was just a process of jockeying for position as these institutions gradually work out their respective places in the new democratic order. But others see it as a continuation of the institutional and political instability that has racked Pakistan since independence in 1947 and that could sometime in the future contribute to another collapse of democracy and return of military rule.

In recent years, other developments have led liberals to question their previous support for the chief justice and the Lawyers' Movement. Most shocking was the public support of many lawyers for the assassination of Salman Taseer, the governor of Punjab, who in January 2011 was murdered by one of his own bodyguards for criticizing Pakistan's blasphemy law, which has been repeatedly misused in private feuds and the persecution of religious minorities. A previous chief justice of the Lahore High Court himself justified this murder to me in an interview last year on the grounds that "the laws of God take precedence over the laws of man."

Pakistani courts have also repeatedly failed to convict terrorism suspects, even when the cases against them seemed clear-cut. They overturned both a ban on Jamaat-ud-Dawa -- the public face of the militant group Lashkar-e-Taiba, which was responsible for the 2008 Mumbai terrorist attacks -- and a detention order against its leader, Hafiz Saeed. In a recent case, they acquitted four Pakistani Taliban activists accused of an attack on the Inter-Services Intelligence (ISI) headquarters in Lahore. As many Pakistanis have told them, this kind of verdict not only undermines the entire struggle against terrorism in Pakistan, but also encourages extrajudicial executions by the police and Army. In this case, all four men were promptly detained by the ISI under special anti-terrorism laws. And within a few weeks, all were dead under very suspicious circumstances.

These verdicts reflect in part both fear of the terrorists and the extreme incompetence of Pakistani prosecutors and police to draw up charges that will stick in court. Based on my meetings with some lawyers and judges, however, these judicial decisions often reflect deep hostility to the United States and the "war on terror" as well -- even when those being prosecuted have killed not Americans or Indians but fellow Pakistanis. In this, the judges and lawyers concerned are simply reflecting widespread feelings in the conservative middle class from which they are drawn. The clash between Chaudhry and Musharraf in 2007 originated in part with the chief justice's (legally justified) attempts to investigate Pakistani actions in handing over detained terrorism suspects to the United States. Several local leaders and supporters of the Lawyers' Movement whom I interviewed between 2007 and 2009 were extremely anti-American even by Pakistani standards, and they admitted that they were motivated to join the movement by outrage not just at the dismissal of the chief justice but also at Musharraf's action in storming the Red Mosque, an Islamist militant headquarters in Islamabad.

The chief justice and many of the lawyers have become extraordinarily autocratic and extremely bad at cleaning up their own house. Chaudhry has issued suo moto (of his own volition) verdicts dismissing state officials, overturning government economic policies, and intervening in executive decisions against which nobody else has brought legal charges.

Lower levels of the judicial system are even worse. During two out of my three recent visits to Lahore, lawyers in that city have been filmed beating up policemen who have testified against their clients in court -- and have then beaten up the television crews who dared to film them! Rarely are lawyers who break the law or openly forge their own certificates disbarred or even disciplined by their bar associations. The lower courts are notorious for their corruption, incompetence, and endless delays, and most Pakistanis loathe and fear them, preferring when possible either sharia law or the often brutal but quick, cheap, and accessible workings of local community justice.

This rather depressing story has a number of lessons. Firstly, Western news outlets and academics must examine yet again their chronic tendency to analyze developments in other countries according to simplistic Western frameworks and then assign the titles of "Goody" or "Baddy" to the participants. Yes, Pakistani reality is complex. But, then again, the United States (as well as Britain) has now been engaged in the war on terror -- and hence closely engaged with Pakistan -- for more than 10 years. That should have been sufficient time to develop greater knowledge and a more sophisticated analysis of Pakistan. Western journalists and analysts also need to break out of the trap of talking with educated Pakistani liberals who agree with them. The great Pakistani human rights lawyer and women's rights advocate Asma Jahangir, so often quoted in the Western media, is indeed a highly admirable figure. Unfortunately, she is not a highly representative figure as far as her profession is concerned.

Chief Justice Chaudhry, nonetheless, does still have widespread public support as a figure who represents some kind of check on the frequently awful workings of government (whether civilian or military) in Pakistan and the endless oppression and extortion meted out to ordinary Pakistanis by officials and the police. Chaudhry emerged as the most popular figure in the country in a Gallup poll in October 2011, with 16 positive points, though his score was down a third from the height of his popularity in 2007 and 2008 due to perceptions of his partisanship. This illustrates a deeper truth, which has also been apparent in the revolutions of the Arab Spring: the deep hunger of ordinary people across the Muslim world for greater justice. This yearning reflects not only their daily experiences of injustice, but also the core teachings of Islam.

On the one hand, Westerners must sympathize with these aspirations, echoing as they do past Western struggles against oppression. On the other hand, the desire of ordinary Muslims for justice is often linked both to a belief in the ideal, divinely inspired justice supposedly represented by sharia law and to a conviction that the Muslim world as a whole is the victim of injustice perpetrated by the West. We ignore these sentiments at great cost.

Arif Ali/AFP/Getty Images


The Global Health President

Why Rick Santorum would be great news for the AIDS fight in Africa.

Before he became president, few expected George W. Bush to be a global health activist. But Bush astounded his critics and supporters alike by launching a train of multibillion-dollar health rescue programs for the developing world, including the President's Emergency Plan for AIDS Relief (PEPFAR), the President's Malaria Initiative, and the Global Fund to Fight AIDS, Tuberculosis and Malaria. Bush, in launching PEPFAR in 2003, called it a "work of mercy" to save Africa and hailed what he called the "Lazarus effect" of anti-HIV drugs in saving AIDS patients from the brink of death and allowing them to lead more normal lives, quickly and inexpensively. PEPFAR and its associated programs, which have spent $39 billion to treat millions of people, have been recognized as a cornerstone of Bush's presidency. And in many countries receiving PEPFAR and Global Fund support, Bush and America have become synonymous with global health.

Back in 2002, when I was Secretary of State Colin Powell's special envoy on HIV/AIDS, I learned of Rick Santorum's call for a robust role for the United States in international health, an unusual and distinctive position for a senator from Pennsylvania, where jobs and the economy are dominant issues. Fast-forward to this year's Republican campaign for the presidency, where the most religiously conservative candidate, surprisingly, is the most fervent advocate for U.S. global health diplomacy.

Alone among his rivals, Santorum has staked out global health as one of his preferred instruments of asserting American power abroad. He is the only Republican candidate to declare he wants to "keep and expand" Bush's humanitarian aid push in Africa. In contrast, Mitt Romney is "very reluctant to borrow lots more money to be able to do wonderful things" if other countries and groups do not contribute more; Newt Gingrich has called for government-run foreign aid to be replaced with private incentives; and Ron Paul, a physician, has asserted that "all the foreign aid in the world will not transform Africa into a thriving, healthy continent."

Santorum seems determined to lay the groundwork for a global health agenda that is not only far more extensive than his competitors', but would surpass both Bush and Barack Obama in advancing U.S. interests abroad through fighting disease. If he follows through with his campaign promises, Santorum could elevate global health to be a prominent instrument of American statecraft.

His record so far is promising. In 2008, Santorum urged his conservative allies in Congress to support reauthorization of Bush's global AIDS program at a new, higher price tag of $50 billion. He called this "some of the best money Congress can spend" as doing so would "protect our nation," and he argued that fighting AIDS could win friends in strategic, pivotal countries such as Indonesia and deter enemies from making inroads in impoverished zones. At the Nov. 22, 2011, Republican presidential primary debate, Santorum asserted that advancing global health was "absolutely essential." He conjoined the rescue mission of health with that of promoting U.S. interests, stating "the work that we've done in stabilizing [Africa], while humanitarian in nature, was absolutely essential for our national security."

He has couched aid programs as "one of our best international investments" and credited humanitarian aid and fighting AIDS as critical to winning "hearts and minds" in competing against the influence of "China and Islam" in Africa. "We have done more good for America in Africa and in the Third World by the things that we've done," he said at the Nov. 22 debate. "And we have saved money and saved military deployments by wisely spending that money not on our enemies but on folks who can and will be our friends." His reasoning echoes the arguments asserted by the late diplomat Richard Holbrooke about saving Africa from a demographic cataclysm caused by HIV/AIDS.

Very soon after Nov. 22's debate, Santorum issued a remarkable statement for World AIDS Day on Dec. 1: "There is reason to celebrate today that over 4 million people with AIDS in Africa are on antiviral drugs as a result of the US commitments through PEPFAR and other partnerships. There is reason to set our resolve, as almost 5,000 people die every day due to AIDS and there are about 7,000 new HIV infections a day. Thankfully, there is reason to hope that in our lifetime, we may see the end of AIDS. Let's turn our resolve into action." None of the other Republican candidates marked the occasion.

Santorum's willingness to work actively against AIDS and poverty has won plaudits from those who might otherwise be his political detractors. Rock star and activist Bono told the New York Times in 2006 that "Rick Santorum has a kind of Tourette's disease; he will always say the most unpopular thing. But on our issues, he has been a defender of the most vulnerable."

If Santorum was ebullient about spending $50 billion on global AIDS in 2008, as president he might be emboldened to seek even higher amounts of money for health and anti-poverty initiatives, beyond what Bush and Obama have done, to implement his principles on a worldwide scale, perhaps one reminiscent of the Marshall Plan that resuscitated Western Europe after World War II. And make no mistake, that's the kind of initiative Africa needs.


Santorum's religiosity, the cause for many of his strong beliefs about global health, might also become the biggest roadblock to his effectiveness. In a 2007 editorial, Santorum wrote, "The social teachings of my faith were a factor in my work as a senator. The horror of AIDS and the tragedy of the millions of orphans it has left in Africa prompted my support for greater U.S. funding. But it was Christ's mandate to care for the poor that inspired my efforts to take a leadership role." A firm believer in banning abortions, Santorum seeks to "ensure that all of our foreign aid, bilateral and multinational … requires recipients of US federal funds to neither perform nor promote abortion in other nations or they will not receive taxpayer money."

Santorum risks incurring opposition from organizations and donors that believe in pro-choice policies, entangling entities like the Global Fund in battles over such restrictive provisions. If others withdraw from cooperating with his administration over abortion, U.S. programs overseas may become isolated and weakened. Santorum, unlike Obama, has expressed strong antipathy toward the U.S. Agency for International Development (USAID) and the United Nations, calling to cut by half both the staffing levels at USAID and U.S. funding for the United Nations. He goes further and advocates the complete defunding of unnamed U.N. agencies that "oppose America's interests and promote abortion."

Santorum might also extend the requirement by Bush to allocate one-third of prevention funds in global health programs to the strategy of abstinence and disallow the exchange of needles and syringes to drug users in HIV/AIDS prevention programs -- a stance that has drawn opposition from many NGOs as inhibiting their outreach to break the cycle of HIV transmission.

Social controversies that have complicated the conduct of global health policy of previous administrations will continue in the future. Still, Santorum seems ready to take a cue from the phrases "Nixon in China" and "Bush in Africa," which describe the surprise and acclaim won by the two Republican presidents in launching dramatic diplomatic initiatives that upended conservatives' expectations. Santorum, if elected president, could depart from conservative orthodoxy by centering U.S. foreign policy on prescribing global health as a potent form of "soft power" statecraft. And he could save millions of lives in the process.

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