A DISTANT APPELLATE CRISIS  

[Posted November 3, 2007]  As I type this, it’s mid-afternoon on Saturday, and I’m in the process of finishing case analyses of yesterday’s Supreme Court opinions.  Normally I would not pause in that effort until I have completed it, but a news report I just saw is sufficiently scary that I’ll change topics for now.

There are a number of things that can hold a particular culture together.  In any given culture, that may be religion, or ideology; a body of common experience, or perhaps just geography.  But only one thing holds a nation together, and that is its laws.  If the rule of law cannot govern a nation, then only military force will.

Today, in Pakistan, even as I type this, military force is struggling with the rule of law for control of the nation.  In this instance, the military is focusing its efforts on cutting off the rule of law, by direct attacks on that nation’s appellate judiciary.  According to the report I have seen, the sitting president, Gen. Pervez Musharraf, has declared a state of emergency and suspended the constitution.  He has purportedly replaced the nation’s Chief Justice, Iftikhar Chaudhry, with one of his own supporters.  Nine members of the Pakistani Supreme Court have rejected the declaration.  Those justices have been escorted away from the court, ostensibly to their homes; I don’t know whether they will be safe.  The president of the Supreme Court Bar Association, an attorney named Aitzaz Ahsan, who had represented Chief Justice Chaudhry, has been arrested. 

The Pakistani high court was set to rule on Gen. Musharraf’s claim of victory in the nation’s recent presidential elections, and the BBC reports that the court was expected to rule against the general.  This declaration followed.

You may have seen last week’s reports that Benazir Bhutto, the nation’s former leader, had returned from exile.  The reports I’m seeing now (from MSNBC.com) are that she is “sitting on a plane at Karachi airport, waiting to see if she would be arrested or deported.”

All of you will be readily familiar with the quotation, almost always taken out of context, from Shakespeare’s Henry VI, Part II:  “The first thing we’ll do, let’s kill all the lawyers.”  It’s usually used as part of a lawyer joke.  But Shakespearean scholars will tell you that, viewed in context, it’s a recognition of what lawyers do for a civilization.  The speaker in the play is Dick the butcher, and he’s talking about how to “take over.”  Realizing that lawyers are the final guardians of a nation’s freedom, he recognizes that the most effective first step toward despotism is to remove those guardians.

Gen. Musharraf may or may not be planning to kill all the justices – and in light of what I’m seeing, I can’t even put quotation marks around that phrase, which would indicate that it isn’t meant completely seriously – but he has evidently figured out that the best way to promote his own despotism is to ensure that the rule of law doesn’t stand in his way.

At this point, I invite you to consider in earnest what prevents something like Pakistan's situation from occurring here.  I want you to think about that in earnest, not with a mere patriotic, knee-jerk "it couldn't happen here" reaction.  As a preface for what follows here, I will note that Justice Robert Jackson, a titan of American jurisprudence of the Twentieth Century, observed after the Nuremberg trials that Weimar Germany had had about as much protection, on paper, against despotism as the American Constitution affords us. 

I attended law school in the late 70’s and early 80’s.  The memory of the Watergate political crisis was still fresh in everyone’s minds, and I can recall, in that context, studying the Supreme Court’s decision in US v. Nixon, deciding who would decide the validity of a claim of executive privilege.  President Nixon had contended that the courts did not have the right, under the Separation of Powers Doctrine, to adjudicate his claim of privilege.  You may recall that the Supreme Court of the United States rejected his claim.

I recall musing at that time, What keeps the president from responding, “How many legions has the court?” and ignoring the order?  The answer, ultimately, is the rule of law, and Americans’ deep respect for it.  Nixon could conceivably have ordered the military (which was under his direction as Commander in Chief) to guard the White House against any determined United States Marshal who might have tried to serve some sort of legal process upon the president.  Now you’re talking about a major constitutional crisis.

Now you’re talking about Pakistan.  The very crisis (or something very close to it) that I so foolishly wondered about in 1979 in my Constitutional Law class, is now playing out before the world’s eyes in southern Asia, and appellate courts are at the vortex of the matter.

I earnestly hope for a peaceful solution to this crisis, in which the general backs down and adheres to the lawfully constituted court’s directives.  But knowing nothing about the respect the people of Pakistan have for the rule of law, I’m in the dark as to whether this nation will allow its most powerful military officer to get away with a power grab like this.

I urge this lesson upon each of my readers:  The stability of our republican form of government, thankfully not in real peril right now, is nevertheless dependent on our own commitment to the rule of law.  I’m confident that Americans would never tolerate a move like Musharraf’s of today, or my hypothetical Nixon response; but that’s true only as long as their respect for the rule of law never gets complacent.  This is one of those instances in which we, the lawyers (and I’ll include those of you, my readers who wear robes), are the ultimate protectors of something bigger than our clients’ individual interests.