Any morality-led reinterpretation of the supreme law will open doors for future misuse
The federal government seems to have escaped many a crisis in recent months. There is a pattern to this madness. The systemic fault lines of Pakistan’s political system manifest themselves time and again. Whether it is the long-standing civil-military distrust or the fissures within the political elites, this is not a new story. In recent years, the new power centre i.e., higher judiciary has entered the equation thereby creating a new dynamic in terms of power imbalances between various actors. This development has its roots in the events of 2007-2009 when the so-called lawyers movement mobilised urban middle classes and led to what some analysts have termed as the ‘law model’.
Faisal Siddiqui, an active member of the lawyers movement has cited this historic quote in his piece (January 1, 2012,The Dawn) by Justice Jawwad S. Khawaja: “The past three years in the history of Pakistan have been momentous and can be accorded the same historical significance as the events of 1947… and those of 1971 … It is in this backdrop that these petitions have been heard and decided.”
Furthermore, Siddiqui writes how the courts and growing ‘judico-politico’ power articulated the ‘law model’ — negotiating democratic transition through courts and the law — in direct opposition to the ‘force model’ conceived by Musharraf and his associates in the junta. The tensions resulted in the emergence of a ‘consent’ model typified by the NRO and how it allowed for a negotiated democratic transition.
Indeed, this is a new development in Pakistan. The understanding of this law model is rather limited and perhaps rudimentary given that this model is still evolving. Nevertheless, a few conceptual problems can be detected. First of all, it is a well-established principle that democratic development requires an elite consensus of sorts.
The very process of democratisation, as has been noted in various democratic countries entails negotiation, bargain and compromise. Therefore, the consent model is what has driven many countries towards democracy. Several Southeast Asian countries like Indonesia have implemented this model and proceeded with strengthening of civilian institutions.
Needless to say, the political elites and civil society play a major role in effecting this consensus. By signing the charter of democracy, most political parties in Pakistan did agree on a common framework. However, in actual terms the realisation of CoD has been stunted. Even though much of it has been implemented in terms of constitutional reform, the interplay between the parliament, judiciary and the military has been problematic to say the least.
First of all, the military ascendancy remains for various reasons. There are domestic lobbies, especially within the largest province of the country which trust the armed forces compared to the ‘corrupt’ politicians. The military is engaged in a protracted battle against extremists and also as an ally of NATO in the ‘war on terror’. Under such circumstances, it is difficult to reset the parameters of power relations. The political elites have remained disunited in terms of tackling this issue even when they displayed rare consensus in devolving powers from the centre to the provinces.
Second, and perhaps more importantly, the judiciary now treats itself as a representative of people’s will due to the support it garnered during the lawyers movement. Judges have made remarks to this effect to the extent of one Supreme Court judge saying that the Court was only answerable to people. This representative politics is misleading. After all, what would be the mechanism of public accountability when the judges cannot be held accountable other than their peers through a mechanism i.e. Supreme Judicial Council — which has remained inactive for most of Pakistan’s history!
The growth of middle class is another factor, which emboldens this new consciousness among the judges and lawyers. Various estimates suggest the middle class or ‘extended middle class’ could be between 30 to 60 million people. One study by the Pakistan Institute of Development Economics even suggests that the size of this extended middle class may be the largest in the region even larger than India. This class is driven by different motives than pure patronage that the traditional electoral process guarantees in the rural and semi-rural areas.
However, analysts such as Ayesha Siddiqa are not too optimistic about the middle class as an agent of change. In her view, Pakistan is a praetorian state and “society which means that it is mired in or inclined towards illegal and excessive authority and violence.” Perhaps this explains why the unelected institutions such as the judiciary and the military branch of the executive are likely to remain dominant. The ‘law model’ is inherently problematic. Without the participation of people and electoral accountability, the exercise of power by the unelected can only reinforce the historical trends of a state that remains divorced from the citizen and losing legitimacy by the day.
The middle class is also an avid consumer of Pakistan’s noisy media, especially its twenty-four TV news channels. Entertainment has now been redefined as politician-bashing and advancing the old argument that ‘democracy’ is a failure and it does not deliver except enrich the politicians. Ironically, a large number of the young supporters of Imran Khan led Pakistan Tehreek e Insaaf believe in this dicta. On the one hand, they are keen to vote and bring PTI to power through the ballot box, and on the other they also want to discredit and bring the whole ‘system’ down which in populist discourse is deemed as ‘corrupt’.
Since Pakistan’s dismemberment in 1971, national security has been an obsession with the state. The education system, the popular discourse, notions of nationalism, patriotism have been defined in terms of militarism, nuclear prowess and xenophobia against India which has now grown to the extent that almost the entire world is somehow plotting against Pakistan and it needs to ‘defend’ itself. The rise of a new right wing nationalism, therefore, is aided by these historical factors. But the last ten years of Pakistan’s involvement in the war on terror and its political elites’ inability to arrive at an alternative narrative has given extraordinary consensus. The ‘force model’ as termed by Siddiqui has perhaps entered into a new process of reinvention.
This new force ‘model’ prefers individual judges over the Constitution, it permeates on a daily basis through a variety of talk shows which barring few exceptions regurgitate what the Zia ul Haq tailor-made textbooks and legal system have set as the destiny of Pakistan. This ‘destiny’ encapsulates expansionary nationalism (strategic depth in Afghanistan); a righteous society (purged of non-Muslims and dissenters) and a primitive, emotional sense of honour (through nuclear might as a ‘deterrent’).
Sadly, despite the growing middle class, ‘modernity’ and socio-economic mobility, many Pakistanis are wedded to these constructs. It is indeed true that no society or group can be a static entity and there are several signs of change evident in Pakistan, especially in terms of women’s empowerment and integration into the contested globalization. Yet, the commitment to democratic system by the urban classes is an unknown.
In the recent weeks, power play in Islamabad has shown that an overt military coup is perhaps not possible in the due to the emerging systemic dynamics. A coup cannot be sustained in the presence of a powerful judiciary and a media, which has its own stakes in the power-arrangements. Democratic transition, truncated and compromised as it might be, continues to be underway. With the new general election it might enter into another phase where the contests and fault lines become sharper and move towards a resolution of sorts.
In the short term, adhering to constitutional provisions will be vital. Any morality-led reinterpretation of the supreme law will open doors for future misuse. Whether it is the jurisdictions of the Parliament and judiciary, the immunity granted to the President or the sanctity of basic rights. Under no circumstances, the elites should trample the arduous consensus reached after nearly 35 years in the form of 18th and 19th amendments to the Constitution.
Regardless of what the stakeholders may have planned, Pakistan needs political stability and serious focus on policy. The year 2011 was disastrous for economic policy as the government moved from one crisis to another; and paid scant attention to issues, which affect millions.
The results are evident: doomsday pundits are predicting an economic meltdown once again and the energy shortages have paralysed sections of industry and enraged the citizens. Perhaps it is time for the reinterpretation and enforcement of a ‘consensus model’ whereby the elected and the unelected, the guardians, populists and the adjudicators agree on the constitutional rules of the game. Neither the Parliament nor the judiciary should abuse the constitutional provisions for their narrow interests. If the trend continues, such bitterly played power struggles will lead to ‘grievous consequences’ of another kind.
First appeared in The News on Sunday, January 29, 2012.