Legal eye: Path to reform?

Our biggest failing during Pakistan’s 70-year journey has been our inability to evolve consensus around a path to progress and reform. Let’s leave conspiracy theories aside for a minute. Let’s assume that the competing paths to salvation being pursued are all well intentioned. But does that mean they are feasible or right? The shock-and-awe model of reforming the ‘system’ hasn’t worked in the past and won’t work in the future. The one-man or one-institution saviour model hasn’t worked and won’t work. The controlled democracy idea is simply bum.

That something extraordinary (or even unconstitutional) must be done as things get so bad that they can’t get any worse is a familiar refrain. The problem with this argument is that it never includes details of how deconstruction of one thing will lead to the construction of another that is better. The failure to think through the consequences of shocking the polity (we seem to prefer the term ‘system’) is often mistakenly projected as idealism. Practising one’s principles and ideals no matter how inconvenient is idealism. But blindly relying on miracles isn’t.

After Ayub, Zia and Musharraf and direct khaki rule for half this nation’s life we should have concluded as rational beings that military intervention in politics won’t lead to deliverance. But we haven’t. Notwithstanding that our constitution prescribes civilian control of the military, and the khakis have no legal mandate to draw up some master plan and steer the country in a particular direction, that is exactly what is expected of them. The justification for this unsanctioned role is exceptionalism: the khakis are the only ones who can enforce a plan, so they must.

Our one-man saviour model is also based on exceptionalism, and devoid of logic. In the last two decades, we have seen a bunch of individuals being projected as saviours. First came Musharraf. Then there was Iftikhar Chaudhry. Then we got #ThankYouRaheelSharif. And within the political domain we have Imran Khan. You will never hear a convincing argument being constructed around how one man will change the fate of this nation. But we are an emotion and faith-driven lot. What after all is the utility of faith if it doesn’t produce blind adherence?

Shock-and-awe as the preferred execution tool in the one-man or one-institution salvation models is equally absurd. Wasn’t Musharraf’s infamous 7-point agenda meant to send all crooks running for cover? A uniformed no-nonsense soldier with a stick was meant to automatically straighten up all systems. But it didn’t. After the born-again Iftikhar Chaudhry came back to head the Supreme Court in 2009, Article 184(3) was the shock-and-awe tool. Everyone came to believe that the solution to every problem is the SC’s suo motu cognizance of it.

We saw corruption scandals being broken, the corrupt being ridiculed, ears of public servants being pulled in public, limits of executive power being laid down etc. But with all that constitutional and moral authority, popular support and incredible opportunity for judicial reform that the Iftikhar Chaudhry-led SC had, what does it have to show for itself? What is the one lasting contribution of that era? Did fear of the law trickle down from the top of our political pyramid to the grassroots? Did institutions become functional? Was the rot within the justice system stemmed?

The shock-and-awe approach is in turn rooted in misconceived belief in the trickle-down effect of deterrence (together with our penchant for lynching). One hears reasonable people propose public hangings as a fix for all that is wrong around here. Let’s hang one corrupt politico and that will put the fear of God in the hearts of all politicos. Let’s hang one general and that will address the issue of military intervention in politics. Let’s make an example out of a few terrorists and that will deter all those suicide bombers eager to blow themselves up.

Our constitution and rule of law required that Musharraf be tried for treason. But to think that a treason trial, even if conducted most fairly and transparently, would miraculously fix our civil-military imbalance is foolhardy. More than deterrence, it will be evolution of a normative consensus within the military that intervention in politics doesn’t provide a path to reform or progress and instead retards national progress that will curtail military adventurism. And evolution of such consensus will take a lot more than trying or hanging an ambitious general.

Similarly, throwing out a PM by giving Articles 62/63 creative interpretation is no panacea for corruption and lack of accountability. Nawaz Sharif must be tried for possessing assets beyond his means and must serve jail time if found guilty. In any decent polity, legal and political accountability supplement each other and are not substitutes. NS being convicted of a crime won’t damage democracy. But to argue that tossing out a PM without due process will somehow shock and reform the system is disingenuous. Pitting rule of law against democracy isn’t wise.

PM Gilani’s conviction for contempt didn’t cure corruption or entrench majesty of the law in Pakistan. YRG was rightly convicted for defying an unambiguous court order. But the argument that such cases of larger political consequence are helpful in curing diseased institutions and public ethos is mistaken. YRG’s disqualification didn’t reform the ruling elite and throwing NS out won’t do so either. Destruction of one faction of the power elite doesn’t automatically lead to construction of institutions and processes imperative for rule of law and reform.

One argument in favour of liberal interpretation by the SC of Articles 62/63 and its own jurisdiction under Article 184(3) to have NS disqualified without trial has been that trials in our ‘system’ lead to acquittals. The supporting argument is that if the system can’t punish the powerful and can only punish the weak, we have no justice system at all. But the two arguments are mutually contradictory. The failure of the system in the NS case is that it never thoroughly investigated or prosecuted him for alleged crimes that are two and a half decades old.

The weak won’t be meted out justice in trial courts now that the SC has thrown the PM out. For that we need to fix our trial courts. Only if justice is dispensed in ordinary course and not as an exception will our justice system become functional and nip Panamas in the bud. An exceptional system will always militate against the weak. But dispensing justice in ordinary course with diligent, autonomous and honest judges, prosecutors and investigators and eradicating the thana/kachery culture will require real work.

Iftikhar Chaudhry introduced the cathartic justice model wherein the sound and fury emanating from the SC as it wagged its finger at the mighty produced cathartic relief for the masses. But we now know from experience that the model inspired no sustainable change. NAB is still the dysfunctional body it was back then when the SC was removing NAB chiefs one after another. The average citizen still wades through graft and extortion to seek service from state. Can deterrence-through-NS-disqualification change all this?

We saw the lawyers’ movement and reinstatement of judges but there exists no serious conversation about reform of the justice system. We had Dharna-I and a gridlock over election malpractices but have seen no credible actions so far that would make Election 2018 fair and credible in the eyes of all stakeholders. We have been consumed by the Panama scandal and allegations of highest public officials living beyond their means, but somehow managed to make the ouster of NS the be-all and end-all of accountability within the polity.

We have sent Nawaz packing and can hand the crown to someone else. But in order to institute reform and steer this ship out of choppy waters, we will need to do the hard work required to fix and build our institutions. Saviours, cathartic justice and trickle-down deterrence won’t deliver us our salvation.

The writer is a lawyer based in Islamabad.

Email: sattar@post.harvard.edu