Saturday, June 23, 2007

Rule of Law as Form or Substance: Pakistan and its Prostitutes

The global media recently ran a story about a raid, by Islamists Raid Pakistani Brothel, Press Association, June 23, 2007, against a brothel in Islamabad. According to the story, Abdul Rashid Ghazi and his brother, who run a local mosque in Islamabad, along with "[d]ozens of Islamic students seized . . . nine people from a massage parlour in an upmarket neighbourhood of Islamabad." Id. The leaders of the mosque, along with their students, were upset that, in their view, the owners, operators and employees of the massage parlour "were 'spreading obscenity" and "running a brothel in the cover of a massage parlour'." Islamists Raid Pakistani Brothel, Press Association, June 23, 2007. There was only one thing to do when faced with this sort of activity--close the business down by staging a raid on the premises and abducting the employees--especially the women providing the services complained of.

The raid by elements of the religious community of Pakistan was met with appropriate official response by the representatives of the Pakistani political community--
"Interior Ministry said the abductions were a "shocking and unlawful act." Islamists Raid Pakistani Brothel, Press Association, June 23, 2007. Pakistani officials then immediately negotiated the release of the people kidnapped. All were released within fourteen hours of their kidnapping. Islamists Raid Pakistani Brothel, Press Association, June 23, 2007. Upon the release of the people abducted, "Mohammed Ali, the deputy chief of Islamabad's administration, said authorities would take "appropriate action" against those responsible." Islamists Raid Pakistani Brothel, Press Association, June 23, 2007. But that action may not include anything officially directed against the Ghazi brothers, their mosque, or their students and other participants in this act of religious justice. Indeed, Pakistani political officials were quoted as stating that "cracking down on the mosque could provoke a bloodbath - the mosque's prayer leader has warned of suicide attacks."

And the Ghazi brothers are not individual or aberrational actors. The story's authors suggested that " The abductions were the latest act in a freelance anti-vice campaign by seminary students and teachers that has embarrassed the government of President General Pervez Musharraf and raised concerns about rising extremism in Pakistan." Islamists Raid Pakistani Brothel, Press Association, June 23, 2007. And the story also had a local context--the authors suggested that attention to the Ghazi brothers' action was meant as a ploy--"Critics accuse intelligence agencies of manipulating the events to divert attention from a crisis triggered by Musharraf's controversial suspension of the country's top judge." Islamists Raid Pakistani Brothel, Press Association, June 23, 2007

At one level, the facts of this story is not unique to Pakistan, or the dar al-Islam, or even the developing world. The media is full of the occasional story of the "local folks" chasing vice out of town. And indeed, when it happens in the poorer sections of large American cities, the result (fewer sex industry workers in the neighborhood) is lauded.

But on another level, the story takes on a much more interesting character. The nature of the action taken--kidnapping--is extreme. The usual course of action for "concerned citizens" in many states is for the local citizens to band together to provide a foundation for effective action by the instrumentalities of the state--usually the local police and prosecutors. Yet in this case the law played a marginal part. Law, and its rule system was most effective in supplying sound bites to the western press by political officials who had no intention of applying its sanctions--because political officials couldn't or wouldn't apply them. And it is those deviating elements that make the story of the Ghazi brothers much more interesting from the perspective of globalization and the understanding of "rule of law" as a lived concept.

In particular, two elements of the story that makes it much more interesting to students of rule of law and of globalization. First, globalization is having a strong impact on local law. Second, that impact is evidenced by the rise of contradictions within law and rule of law. Second, law, and especially the rule of law, has the potential for strong contradiction within global networks of markets operating in territorially limited political states. That contradiction is illustrated in this case by the differences between substance and formalism in the application of law in Pakistan.

The story reminds us that commodities and services now exist within strong global networks that operate on their own terms. It is increasingly difficult to consider markets in goods or services as localized. In particular in this case, markets for physical contact, like markets for other commodities and services, has gone global. Worse, in the case of sex workers, global demand (even in places like Pakistan) and territorially limited legal regimes, has created a substantial amount of exploitation--mostly of the sex workers (usually women or the young--that raises serious human rights issues. The demographics in this episode is hardly unusual. In this case, "[s]ix foreign women were taken, including three Chinese. One Chinese man and two Pakistani men were also among those kidnapped. Ghazi didn't disclose the nationalities of the three other women." Islamists Raid Pakistani Brothel, Press Association, June 23, 2007.

Free movement of this type has some strong consequences for law. The story nicely illustrates a conundrum of law systems in a global context. The story illustrates the difficulties of applying a state centered and politically based rule of law concept consistently in a global order made up of overlapping communities with different normative systems of behavior. As a formal matter, the usual rule of law landscape appears to be operating in Pakistan. The state, through its apparatus, as representative of the people, have enacted law. In this case, that law prohibits prostitution, as well as kidnapping, interference with business, and the destruction of property. Obedience to law is an obligation of the individual; enforcement is the paramount duty of the state apparatus. Yet, as a substantive matter, formal law does not exist. A segment of the Pakistani religious community, adhering to the strictures of a legal system whose sources are not found within the political constitution of the Pakistani state, enforced those rules in a manner consistent with its own rules of process and justice. Though both stricture and enforcement methods were incompatible with the formal law structures of the Pakistani state. Yet the Pakistani state is essentially powerless to prevent the exercise of effective law power by the Ghazi brothers and their students. Any move against the Ghazis would test the loyalty of the Pakistani nation to the state apparatus. And the Ghazi brothers can project power in substantial enough ways--suicide bombing and other actions against the state apparatus itself. As a result, the substantive law of Pakistan is the law of the Ghazi brothers, mediated, to the extent that it can be, by the state apparatus seeking to persuade (and not coerce) adherence to the formal rule of law system.

The actions of the Ghazi brothers in Islamabad, like those of their counterparts in the Gaza Strip and in other places suggest the more complicated nature of rule of law as practiced "on the ground." Rather than the lovely construct of Western academics, rule of law in a world of fractured law making (and enforcing) power appears to be contingent and fractured. And it is not necessarily tied to the apparatus of the state. Thus, what for Western officials is "a major problem in terms of the breakdown of law and order" (Arrests Follow Gaza School Attack, BBC News, June 7, 2007 (quoting John Ging, described as "the top UN official in Gaza" Id.)) may be more indicative of a shifting of law making power within a territory in ways that threaten the monopoly power of the state apparatus over law and its rule.

But in a larger sense, the drama of the Ghazi brothers mosque in Islamabad, the Chinese service workers kidnapped, the shadow governance in Gaza and its systematic attacks on Christians and what it considers "immoral" and therefor unlawful, works on a larger template as well. Globalization, in effect, has made virtually all of its actors--multinational corporations, religious groups, elements of civil society, diaspora organizations, and the like--like the Ghazi brothers and their followers. Each is, to some extent, empowered through the law or norm system through which they operate to act on those norms. Each has sufficient power, to the extent of that power, to challenge the hegemony of the traditional monopoly power wielder within a physical territory--the state apparatus--even within its territory. And with respect to each, the state is increasingly reduced to negotiating some sort of arrangement that represents a compromise between its norm system (and the processes of its enforcement) and those of other global actors. Not that the state is happy to do this, but like the case in Pakistan, while formal power systems continue to be centered on the state, the substance of law has to some extent shifted.

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