What rule of law?
Aasim Sajjad Akhtar
In theory, the modern liberal-constitutional state has three autonomous arms, all of which ideally reinforce its inherently democratic character. It is not uncommon to hear the liberal intelligentsia exhort that the biggest failing in Pakistan is the fact that the 'rule of law' has not been upheld; in other words, the executive arm of the state has dominated the legislative and judicial arms. This argument would make sense if the Pakistani state were actually fashioned on genuine liberal principles, which, of course, it is not. Instead it remains wedded to the colonial mandate with which it was endowed when it came into being under the British. This means that the judicial arm of the state actually serves to reinforce the executive rather than keep it in check. It is therefore not surprising at all that the executive (read: administrative) arm of the state remains as dominant as it is.
Hence when the judiciary does actually issue a judgment that seemingly defies the executive, one cannot but help sit up and take notice. For much of Pakistan's history, the judiciary has been complicit with the forces of dictatorship, starting with the Maulvi Tamizuddin case following the dissolution of the Constituent Assembly in 1954, followed by the Supreme Court ruling in favour of the 1958 coup, to the ruling that gave constitutional legitimacy to Ziaul Haq's coup. And the list could go on. There have been a handful of contrary decisions as well, including the Supreme Court ruling against President Ghulam Ishaq Khan's dismissal of the first Nawaz Sharif government in 1993. The recent Supreme Court ruling annulling the privatisation of Pakistan Steel Mills (PSM) is another such rare occurrence.
At the very least, the PSM decision is an affront to the much vaunted economic regime of the Musharraf government. For much of the past seven years, privatisation has been depicted as a magical panacea to the numerous structural problems facing the economy. Among the many 'historic' privatisations that the government has gone on and on about are those of Pakistan Telecommunication Company Limited (PTCL) and Karachi Electricity Supply Corporation (KESC). The prime minister has said on multiple occasions that the government wants to sell virtually all state enterprises and has insisted on the inherent wisdom of such a policy. The PSM privatisation was said to be a major heist for the government; its subsequent annulment by the court cannot be viewed as anything less than a major setback.
Arguably however, the court's decision has more significant implications. Its annulment of the PSM privatisation was based upon clear evidence that the process was highly suspect, and that government high-ups favoured the eventual successful bidder on account of personal contacts. Furthermore the favoured bid ostensibly offered the chance of self-aggrandizement for state functionaries. On the whole, all big deals done by this or any other government in Pakistan can always be expected to be at least partially influenced by considerations of personal accumulation. Then again it is important to bear in mind that this is not a uniquely Pakistani phenomenon. For a long time, third world governments were viewed as especially corrupt, perennially prone to 'cronyism' and insider deals. More recently, the phenomenon has been proven to be a worldwide one, not restricted to certain cultural settings; the current administration in the United States has set new standards for nepotism by exploiting the business-government nexus like never before. In any case, the fact that at least one such underhanded deal has been exposed in Pakistan is an important step forward.
The decision -- based as it was on such painfully obvious and inexplicable holes in the government's case including the fact that the sale value was far below even the value of the land which the PSM establishment occupies -- also illustrates that the government has gotten very sloppy in its dealings. As the PTCL mobilisation of last year demonstrated, it does not take much to bring the government to its knees, which is why the state has systematically co-opted trade unions, student groups, and yes, political parties that have ever threatened to challenge it.
Taking this argument forward, it is important to bear in mind that the annulment of the PSM privatisation by the Supreme Court is not necessarily a sign of things to come. The decision does not herald a new and independent phase in its history, neither does it alter the reality of a centralised and obsolete state that continues to operate as its colonial predecessor did. What it does indicate however is that the space exists to build a substantive political challenge to the state, for a number of reasons. First, as pointed out above, the present government is making decisions to hand over assets and the like to the private sector with reckless abandon, because it feels it faces no real constraint. The reckless abandon necessarily induces anger and resentment from the hordes of workers, consumers and ordinary citizens who are getting the short end of the stick. Second, the level of understanding among a large number of Pakistanis about the realities of our political process is at an all-time high. More specifically many Pakistanis no longer uphold the reputation of the army as the mythical saviour of the nation and instead recognise its central role in making a mockery of the political process. Thus a political challenge can go beyond the rather meaningless slogan of the need to uphold the 'rule of law', and actually demand a dismantling of the colonial structure of the state itself.
The Supreme Court judgment, while not an unimportant one, does not mean that the balance of power between the administrative and other arms of the state has changed. It was in fact the widespread furore over the preposterous nature of the PSM privatisation and the resulting political pressure that compelled the judiciary to take the decision that it did. What this suggests is that if and when political pressure for substantive structural changes in the nature of the state develops, the courts may actually become the independent repositories for justice that they are supposed to be in principle. In a country where the term 'might is right' truly captures the essence of politics, it is crucial not to start proclaiming the annulment of the PSM privatisation as an historic judgment. For the most part, the legal structure that exists in Pakistan remains oppressive and in itself does not constitute a meaningful framework for the protection of basic freedoms. If the Pakistani state is ever to metamorphose into something other than a colonial one, we will need a new conception of people's law to underlie it.
The writer is associated with the People's Rights Movement and teaches colonial history and political economy at LUMS. Email: [email protected]