Fighting a predatory state

The writer is a lawyer based in Islamabad. He is a Rhodes scholar and has an LL.M from Harvard Law School

Ali Ahmad Kurd won a well-deserved and convincing victory as our new Supreme Court Bar Association president. This election is significant for at least three reasons. One, it was a referendum on the selective restoration policy of the PPP-government pursuant to the depraved Naik formula; an overwhelming majority of our senior lawyers admonished it unflinchingly and sent a clear message that the deconstruction of rule of law and judicial independence undertaken by Gen Musharraf and willingly inherited by the PPP must be reversed. Two, it was a test of perseverance for the legal fraternity to continue to stand united against the tide of intimidation, cronyism and inducements unleashed by the compromised Farooq Naik/Latif Khosa duo now wielding control over means of state patronage within the legal realm, and the lawyers rose to the challenge posed by the corrupting offers of state grants and public office. And, three, it has enabled the lawyers' movement to live on and fight another day.

The doomsayers have already pronounced that the lawyers' movement has failed. They might be right if the object of the movement is narrowly defined as the restoration of Chief Justice Iftikhar Chaudhry. Undoubtedly, the immediate objective of this movement is the restoration of the Chief Justice Chaudhry, Justice Ramday and other (still standing) deposed judges who are being restrained from performing their constitutional functions. But it has been repeatedly asserted that the movement is much larger than individuals and driven by the desire to entrench rule of law and constitutionalism in Pakistan. The return of deposed judges in a principled manner is presently the most effective means to move forward towards that worthy end. Chief Justice Chaudhry must be restored, first of all, because the Constitution and the entire nation was wronged on March 9, 2007, and then again on Nov 3, 2007, when the Chief Justice of Pakistan and the head of the judicature was illegally removed and detained by a lone general who had usurped the executive authority of the state – an act in which the incumbent PPP government is now complicit due to its refusal to take corrective measures.

Equally important, the psychological and symbolic gains that this nation could derive from overturning the malfeasant acts of a dictator being defended by his elected civilian successors, through a peaceful mass movement fuelled by the quest for rule of law and justice, cannot be quantified. Chief Justice Chaudhry should be restored for that will inject a sense of empowerment into this nation presently jaundiced by cynicism and gloom. From an institutional perspective, a chief justice independent of the executive can put into effect our constitutional system of separation of powers and checks and balances between the vital pillars of the state. At a practical level, only an uncompromised chief justice will be able to ensure that the PPP government – that has a proven track record of taking cronyism to new heights – does not stuff the judiciary with jiyalas that this pitiful nation is forced to suffer for a long time. And finally, Chief Justice Chaudhry should be restored because he has been wronged as an individual and the upholding of his rights has become the litmus test for the propriety of our justice system. But the stakes are really high, for if this moment passes it will take the process of evolution at least another decade to wash the judiciary of its sins.

But should Chief Justice Chaudhry be restored is an old query that already stands resolved on the touchstone of principle. The failure of the lawyers' movement to get this objective implemented after all these months is what is regarded as sounding the death knell of this movement. Accusing fingers point to the long march as a wasted opportunity due to the decision of Aitzaz Ahsan and other lawyers leaders not to stage a dharna at its culmination. The end of the long march was ill planned and we'll keep asking what if there was a dharna. Had there been one, we would have been at relative peace today, knowing that everything had been tried at the time that the movement was at its peak. But in questioning the judgment of Aitzaz and others, let us get over our sardonic propensity to deconstruct our heroes and remember the fundamental assumptions that informed the lawyers' movement all along. One, that March 9 and the rampage of the Constitution that followed was a product of the general's insanity and a representative government would not guard the wreckage of such destruction. Two, once the mass support and legitimacy of the immediate-term demands of the lawyers' movement – i.e. unconditional restoration of the Nov 2 judiciary – was manifest, a democratic government would heed the popular will of the people.

It is now evident that the PPP leadership has reached a considered decision to bear the political fallout of turning a deaf ear to the unmistakable voice of the nation but not risk the institution of the independent judiciary led by Chief Justice Chaudhry that would function as a check on the arbitrary exercise of state power by the Zardari-led PPP. The strength of the lawyers' movement and the long march was meant to be the power of persuasion, and not that of coercion. Looking back one can argue that the expected efficacy of the march was premised on fundamentally flawed judgment. Our post-colonial state structure divorced from the populace simply does not respond to mild persuasion. Our elites intoxicated with power neither worry about the silent majority nor the peacefully marching multitudes. Unfortunately, the behaviour of the state and the ruling government – whether military dictatorship or a civilian autocracy – continues to reinforce the lesson that only violent manifestations of disaffection will drive home the need to address legitimate demands.

The one event that did cause irreparable loss to the lawyers' movement was the decision of a majority of the deposed judges to swear a second oath and accept reappointment with fudged seniority under the Naik formula. The difference between the PCO of 2000 and 2007 was not one of constitutional principle but that of (i) public opinion with regard to acceptable judicial behaviour and (ii) the number of judges who refused to connive with a scheme to violate the Constitution. It is now clear that the difference in numbers between 2000 and 2007 was primarily due to ferocious public opinion that militated strongly against the PCO oath this time. And the difference between Nov 3 and today is that most segments of the society have resigned themselves to the status quo, in view of which many deposed judges decided to take a second oath and save their jobs at the cost of their principles.

It is unfortunate that as a nation, our individual conduct continues to be informed more by our understanding of acceptable behaviour as opposed to principled conduct. Unless this gulf between the right and the acceptable is considerably reduced with an evolution of our collective consciousness, movements such as this one led by the lawyers and the civil society will keep failing to realise their objectives. Revisiting the concept of predatory states in the Foreign Affairs in March/April 2008, Larry Diamond wrote that, "in such states, the behaviour of elites is cynical and opportunistic. If there are competitive elections, they become bloody zero-sum struggles in which everything is at stake and no one can afford to lose. Ordinary people are not truly citizens but clients of powerful local bosses, who are themselves the clients of still more powerful patrons. Stark inequalities in power and status create vertical chains of dependency, secured by patronage, coercion and demagogic electoral appeals to ethnic pride and prejudice. Public policies and programmes do not matter, since rulers have few intentions of delivering on them anyway. Officials feed on the state, and the powerful on the weak. The purpose of government is not to generate public goods, such as roads, schools, clinics and sewer systems. Instead, it is to produce private goods for officials, their families and their cronies."

"Predatory states cannot sustain democracy, for sustainable democracy requires constitutionalism, compromise, and a respect for law. The most egregious predatory states produce predatory societies…In such societies the line between the police and the criminals is thin. The police do not enforce the law, judges do not decide the law, customs officials do not inspect goods, manufacturers do not produce, bankers do not invest, and borrowers do not repay. Every transaction is manipulated to someone's immediate advantage."

This description of the predatory state and society is too close for comfort. In the ultimate resort preventing the decomposition of our state and society that have all the symptoms of predatory behavior is the real objective of the rule of law movement. This is not a movement of the black coats alone. In order to succeed, this struggle will need to be owned and waged by all the right-thinking people of Pakistan. Fighting a predatory state to change its character is a formidable task that lawyers will not be able to execute all by themselves.



Email: sattar@post.harvard.edu