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Thursday March 28, 2024

Legal eye: The overdue dialogue

By Babar Sattar
September 02, 2017

Raza Rabbani’s emphasis on the need for a dialogue between state institutions and power centres needs dispassionate consideration. Our power elites have been engaged in an internecine conflict that has landed the country in a quagmire. We can keep sinking deeper. Or we can introspect and reconsider the roles our power elites (and the institutions they act through) have assumed to move our country forward. In doing so, we must bridge the gap between the de facto and de jure roles institutions play on an agreed underlying basis (Grundnorm) for our legal and political system.

In our current embattled state we have all picked sides. In a civ-mil debate, we rehash the arguments that ‘our’ side has been making forever. In the context of democracy and the extent of the judiciary’s powers, the PML-N is saying today what the PPP was saying in the aftermath of Yousaf Raza Gilani’s disqualification. And the PTI and PPP are now making the arguments that the PML-N was making back then. In a conversation about rule of law being contingent upon due process, the means vs ends argument is a constant depending on what partisan consequences one or the other approach produces and who seeks them.

Our preferences at present are not rooted in an underlying Grundnorm backed by consensual agreement amongst all stakeholders – ie the Constitution isn’t always deemed sacrosanct. As a consequence there is often no agreed basis to resolve disputes, whether between political parties or between institutions. Thus when disputes do get settled, they are temporary compromises and not permanently resolved on a shared conception of right and wrong. In a polity where all actors are focused on maximising power and there are no binding rules regulating the pursuit of such ambition, it becomes a no-holds-barred conflict.

It might be an article of faith with the military that it holds Pakistan together against external threats and internal and that it ought to use its institutional power in the country’s supreme interest. Let’s assume it genuinely believes that such supreme interest demands that it determine Pakistan’s national security and foreign policy and keep the blundering politicos under check by interfering in politics in extraordinary circumstances when course correction is overdue. And that such conception of Pakistan’s supreme interest ought to trump the black letter of the constitution (as Musharraf keeps emphasising).

Never mind that our constitution prescribes civilian control of military, if national interest and institutional duty are understood this way by khakis, they would imagine it’s in the country’s interest that the military retain its veto and ability to force course correction in politics if needed. In the event that institutional balance of power is altered such that one party ends up controlling parliament, or the political process otherwise threatens to wrestle away the veto that khakis exercise from behind the curtain, would it not be in the military’s institutional interest to prevent that from happening to remain guardian-in-chief?

We also continue to have a chicken-and-egg conversation about what is supreme: parliament or judiciary. The judiciary rightly believes that its independence and freedom from political interference is a prerequisite for constitutionalism and rule of law to persevere. Historically, the judiciary was an extension of the executive and it is possible that it tends to overreact when actions of the other branches of state are seen as threatening the executive-judiciary separation. To protect itself and public interest in rule of law, it might believe it has a legitimate institutional interest in acquiring more power in relation to other institutions.

We saw the judiciary refusing to submit its accounts before the Public Accounts Committee. We found the Supreme Court loath to giving the parliamentary committee any voice in the process of selection and confirmation of judges and forcing parliament to amend the judicial appointment process introduced through the 18th Amendment to acquire exclusive control over it. And in the aftermath of the 21st Amendment, which established military courts (essentially a no-confidence vote in the judiciary), we found the judiciary arrogating to itself the power even to strike down constitutional amendments.

We see politicos contesting polls to assume control of the legislature and the executive – not to engage in service delivery and translate pre-election promises into reality but to be able to dispense state largess as lords and masters accountable to no one. We have seen them try to monopolise control over state institutions and employ such institutions to serve their personal interests, strengthen personal patronage networks and abuse state authority to target opponents. We have seen them confuse public mandate with accountability and pit democracy against rule of law.

But we have also seen elected institutions being demonised by non-representative institutions. We have seen elected governments being blamed for consequences of policies they have no power to author or influence. We have seen the political process being interrupted and the composition of parliament and government being engineered. We have seen non-representative institutions interfere with exercise of authority that falls exclusively within the domain of elected public officeholders. We have seen dual standards of accountability: one for politicos and another for generals and judges etc.

Due to institutional mistrust (rooted in self-interest, righteousness and selective application of principles) we have at hand an inter-institution conflict that makes accumulation of power and cutting others to size the primary preoccupation of national institutions that should (in a sane place) be working together in collective interest. The consequence is that each institution possesses power but none assumes responsibility. Because we haven’t allowed checks and balances provided in the constitution to become fully operative, the checks applied are arbitrary and often come in the form of intrigue.

The outcome is that no one is accountable for the power and responsibility vested in them on behalf of the state to be exercised in the interest of the people. It is safe to say that in the past 70 years the executive, notwithstanding its identity, hasn’t been focused on service delivery. But this abject failure in discharging the fundamental responsibility of an elected government can conveniently be tucked under civ-mil imbalance: only if the establishment hadn’t conspired against the peoples’ government…only if the public mandate had been respected and the government had been allowed to complete its term…etc etc.

Likewise, no other institution has been held to account for its primary job. As a historical matter, no one has ever been held to account for our blundering security policy. We have had a perpetual external security crisis. And we tell the world as a matter of pride that we have lost the maximum number of soldiers and citizens to terror. For a national security state, the wisdom and efficacy of our national security policy isn’t reassuring. But there is no space in Pakistan to subject our security policy to a candid critique, for that can immediately threaten the morale of the troops and be seen as a conspiracy to tarnish the military’s image.

The judiciary’s primary job is to dispense justice. Everyone understands that our justice system is broken. Every few years we have a wave of judicial activism. No matter how grandiose the plans, the focus of top-heavy activism remains fixing everything other than the justice system. In terms of service delivery, the justice system fares no better than the governance system. In terms of appointments, transfers, postings and promotions etc, the judicial branch is probably as infected with the bug of patronage and arbitrary decisions as the executive. But a soberly drawn scorecard would amount to scandalising the judiciary.

A country of 208 million very pro-procreating folks (with innumerable multi-pronged challenges) can’t sustain the institutional conflict it has been hosting as its primary sport. The present state of war and intrigue isn’t sustainable. Do leaders of our institutions have the ability to move past personalities, inherent biases and momentary interests and focus on the big picture?

The writer is a lawyer based in Islamabad.

Email: sattar@post.harvard.edu