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Legal Eye

June 9, 2018

The conundrum


June 9, 2018

Let’s consider three scenarios. In the first, the PML-N loses and the PTI wins and form the government. In the second, the PML-N wins and forms the government. In the third, no mainstream party wins outright and someone with a Sanjrani profile becomes PM.

All three scenarios lead us to a place where we will need to address basic questions about how we wish to run this country and who is to do what. At the moment, we favour the saviour model backed by the vacuum theory: when those who are supposed to get the job done don’t, someone else must step up and get it done.

Nawaz Sharif stands disqualified for life for being dishonest and untrustworthy. We are told that he has stolen from the country and he and his family have grown fat at the expense of citizens. He has been condemned for attacking the establishment and the judges in his speeches. The first accountability trial is coming to a close. While no one can prejudge the outcome, the general perception is that NS is toast. NAB has also lined up a number of investigations against the Sharif clan and other PML-N leaders. To put it mildly, the gods don’t seem to be favouring the PML-N.

Many politicos of the electable variety, who swore allegiance to NS during the PML-N’s heyday, have taken off and joined the PTI. Many among those who advocate the need for cleansing our political stables as a prerequisite to take project democracy ahead (and call for a greater role to be performed by the army and the judiciary in that context) also tend to support the PTI and oppose the PML-N. The PTI also argues that there is a tailwind taking it toward the finish line. How much power will the PTI be conferred with if it gets to control the executive?

Will it have the power and autonomy to determine foreign and national security policies? Will its policy choices in relation to decisions that fall within the executive’s domain not be challenged in courts? Will its exercise of discretion in making executive appointments not be second-guessed? Will its ministers not be hauled before NAB? So, if the people of Pakistan elect a supposedly ‘clean’ party to run the executive, will such an executive have more leeway to exercise the state’s executive authority and will non-representative institutions give it breathing space?

The second scenario is that (God forbid) despite Panama, disqualification by the SC, simultaneous legal and media trials, the flight of electables, the NAB investigations, and the projection of NS & Co as enemies of the state and its vital institutions, the PML-N still manages to win the election. If people end up voting for the PML-N despite being told repeatedly how wicked and dirty the Sharifs are, will such an irresponsible choice be respected?

If the electorate doesn’t punish the PML-N at the polls despite NS’s legal (and media) accountability, will such an outcome be seen as evidence of an international conspiracy against Pakistan and its national interest or will it conclude that people being told who not to vote for can backfire as human beings like autonomy? If the electorate chooses a party projected as being soiled with repeated counsel that it is in our own interest to choose ‘honest’ representatives, will the supreme national interest mean saving people from themselves? Or will the legal accountability route be used to undo what the people did?

The third scenario is a repeat of the Sanjrani model in Elections 2018: none of the mainstream parties form government on their own, but noble-minded independents agree to join hands with a righteous party in return for the office of PM and key ministries. Will that be something close enough to a technocratic government that the pro-accountability lot is always rooting for? Will such a menagerie be able to give direction to our divided polity? Will such setup be sustainable or will we see PMs and ministers playing musical chairs?

Pakistan is confronted with innumerable challenges. To get us out of the woods, we need an executive that has the vision and ability to take difficult decisions together with the discipline and legitimacy to implement them. If the PML-N’s last year reaffirmed one lesson it was that if power is separated from responsibility, what follows is neither efficacy nor accountability. In the PML-N’s case, let’s attribute ill intent and inability for good measure. But the basic point remains that: even for accountability to work, power and responsibility must reside in the same place.

A system that separates power from responsibility can hold to account neither those with power nor those with responsibility. That the Sanjrani model remains a real possibility suggests that we haven’t learnt a basic lesson about how systems function or how they are to be fixed. To keep the hope and perception of change (and accountability) alive, such a system will need to roll one head after another. The antics could create hope for some, but cynics and the world might view it as unstable, dysfunctional, uncertain and untrustworthy.

The breakdown of the Sanjrani model will bring us back to the original choices: work with the system and allow an elected government the power and autonomy to make choices (even poor ones) or disband the system for a strongman to save the people from themselves – even by threat or use of force. If we follow the strongman model as we have before, the honeymoon with the saviour will end at some point, followed by disaffection and the insistence on returning ‘true’ democracy to Pakistan. And the merry-go-round will continue.

The saviour model backed by the vacuum theory can be cathartic or justificatory, but provides no sustainable solution to our problems. The saviour model is inherently flawed. It vests power in the saviour without responsibility. It is easy to condemn, but not so easy to construct. The model depends on a blame game. So long as the saviour can point a finger at someone else, it works and projects the saviour as the great hope. The moment power and responsibility are both vested in the saviour, the transformation from the saviour being the solution to being the problem begins.

In his Rights Thesis, Ronald Dworkin explains the distinction between principles and policies. Competing rights on the basis of principles can be weighed against one another without producing injustice. For example, the freedom of speech of one has to be balanced against the right to reputation of another. But if principles are weighed against and trumped by policy considerations, the outcome is unjust. The policy of enforced disappearances or condemnation without due process will always remain unjust no matter how compelling the policy reasons behind them.

The saviour model requires fundamental rights to liberty and autonomy to be circumscribed due to policy considerations such as a certain conception of national interest or security. To seek legitimacy, it is forced to rely on populism. As populist decisions aren’t driven by considerations of justice, they end up doing more damage. To offset the focus from accumulating damage, the saviour is armed with the argument that ‘noble ends justify questionable means’. And his inability to be constructive generates the need for a steady stream of scapegoats.

As damage caused by populist decisions (and increasing scapegoats) grows and dissenting voices get louder, so does the saviour’s intolerance. We’ve tried various computations of the saviour model and the outcome is always the same. The populist consensus of the day seems to be that we must try it one more time in the hope that it might finally produce different results.

With populism as his source of legitimacy, the saviour is hostage to populist demands: dissent that comes with the risk of altering public opinion can be his nemesis. Hence, in the saviour model, the declaration of savior-hood is followed by populism and then dissent, and then suppression of dissent. Ultimately, in a complex environment the model becomes unsustainable and collapses under its own weight.

The writer is a lawyer basedin Islamabad.

Email: [email protected]

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