Race to the bottom

Legal eye

How do you change behaviour in a political system when the incumbent ruling elite is committed to pursuing its immediate-term interests by monopolising control over the means of patronage at the expense of democracy’s interest in the wider distribution of authority, the structuring of discretion and subjecting the exercise of public authority to scrutiny?

How does one convince the Sharifs to govern in a manner whereby the distinction between dictatorship and democracy becomes stark and not indistinct?

One explanation for our chequered democratic history is that, given the ethos of elected governments, democracy and dictatorships are indistinguishable. The fruits of democracy don’t trickle down, citizen empowerment isn’t greater under elected regimes, and no meaningful structures are put in place to hold public office-holders to account for powers they exercise in the name of citizens as fiduciaries. If a small coterie will rule whether the government is elected or not, will public allegiance to democracy grow?

Is our third-time PM any different from the second-time PM of the 1990s? In the 1990s, both the PML-N and the PPP (after stabbing each other in the back a few times) agreed to pass the 13th Constitutional Amendment and do away with Article 58(2)(b) that enabled the president to sack an elected government. Then came the 14th Constitutional Amendment, passed by parliament wherein the PML-N had a two-third majority. This castrated individual MPs who, unable to vote in accordance with their views and conscience, were further shackled by their party.

Consider this amendment in today’s context. Let’s assume that a majority of the PML-N MNAs are convinced that the Sharifs’ Panama explanation is a lie (even if the court case doesn’t result in a conviction). There is nothing they can do to hold NS to account other than to resign from their seats to assuage the demands of their conscience. Even if NS was disqualified as an MNA and as PM, he would still be the party head and PML-N MNAs would still be beholden to him during the present term – not to mention his absolute power to grant them a ticket for 2018.

Fast-forward to the post-Musharraf era. All party heads agreed that the democratisation of political parties – the engines of our democracy – will not be elevated to the level of a constitutional commitment under the 18th Amendment. So, political parties remain one-man shows. The ability of MPs to break away from the party line remains constricted by the law. And despite this, there is hardly any meaningful legislation that hasn’t been introduced as an ordinance and presented to parliament as fait accompli. Isn’t legislation the raison d’etre of parliament’s existence?

Article 140A of the constitution after the 18th Amendment mandates the provinces to establish local governments and “devolve political, administrative and financial responsibility and authority to the elected representatives”. It was the relentless prodding by the Supreme Court that caused the reluctant promulgation of local government laws across provinces, including Punjab. And just when local governments were finally coming to life, the PML-N has revived the retrograde commissionerate system through the Punjab Civil Administration Ordinance, 2016.

None of the local government laws devolve political, administrative and financial authority to elected local governments. The rules framed under these laws have been used by the provincial governments to claw back power instead of delegating it to the third-tier of government. But with the Punjab Civil Administration Ordinance, the PML-N isn’t even being coy anymore. It has vested administrative and financial authority in the DC and commissioners who will lord over districts and divisions, while elected local governments will remain useless debating clubs.

The other development that suggests that the Sharifs of the 1990s are back with a bang is the recent change in the rules of business aimed at reducing statutory regulators to the status of attached departments of the government. In contrast to the gibberish uttered by key PML-N ministers to explain the move, NS was candid in a meeting with journalists who had accompanied him to Bosnia recently. He plainly said – to explain why their wings needed to be clipped – that regulators were meant to regulate the private sector (only) but had started regulating the government.

What impact do these developments – with parliament being rendered irrelevant, local bodies being neutered and regulatory authorities being leashed – have on the few men at the top of our power pyramid? Their control over the means of patronage and their ability to dispense it as they wish has been enhanced. Even if one chooses not to impute vile motives to the ruling regime, the most charitable explanation one can come up with is that the centralisation and monopolisation of state authority is driven by the need for efficient delivery prior to the 2018 elections.

Now, consider the argument in favour of democracy. As “power tends to corrupt and absolute power corrupts absolutely”, the best way to prevent the abuse of power is to distribute it widely and subject its exercise to institutional structures that neutralise the whims of individuals. In other words, efficiency and regimented orderliness aren’t virtues claimed by democracy; consensus-oriented decision-making, legitimacy, transparency and accountability are. So what can we do when the flag-bearers of democracy begin vying for perks that dictatorship offers?

The Sharifs seems to be presenting a competing view of democracy that goes like this: The people of Pakistan have elected us to rule for five years. In this period, there must be no restraint on how we exercise state power and distribute state largesse. After five years, people will have a right to choose again. If they like what we have done, they can vote for us. If they don’t, they can vote for someone else. This view projects democracy like a game of lotto where citizens gamble once every five years and then silently suck up the consequences.

This contradicts the notion of democracy envisaged from a rule of law perspective ie the constitution is the source of all state power, which it delegates to various institutions and tiers of government accompanied by a system of checks and balances. This view incorporates doctrines of limited power and trust – that is, that public office-holders can only do what they are authorised to do by law. It is unlike citizens who can do whatever they are not prohibited from doing, and the power they exercise is not their own but that of the people to be exercised in their name and for their benefit.

In 2013, the PML-N was voted into power in the centre, Punjab and Balochistan and had a real opportunity to build local governments in at least two provinces as an effective third-tier of government most relevant to ordinary people. Instead, it used all its power and the devices at its behest to sabotage the idea of the local government. The Punjab Civil Administration Ordinance will ensure that leading to the 2018 elections, districts are under the control of DCs, who themselves have no security of tenure and are kept on a tight leash by the CM’s office.

The PML-N had the power to appoint outstanding experts to serve regulatory bodies to help them provide effective oversight to all regulatees – including public-sector companies, and appoint accomplished professionals on boards of these companies to help them function as profitable commercial entities. Instead of strengthening the functionality and autonomy of regulators – and the vitality and potency of boards – the PML-N regime has changed the rules to ensure the subservience of regulators and boards to the whims of babus reporting to the PM’s Office.

What explains the proclivity of the Sharifs to rely on the loyalty of individuals as opposed to working with and strengthening institutions? Authoritarian ethos? Desire to seek rent? Or plain old laziness?

Whatever the cause, the Sharifs continue to rely on control and the dispersal of patronage as a substitute for service delivery through institutions of democracy. This creates a perpetual need to monopolise power, a natural outcome of which is conflict with other state institutions. It appears that the time in power is fast erasing the what-not-to-do lessons of the 1990s.

The writer is a lawyer based in Islamabad.

Email: sattar@post.harvard.edu