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Legal Eye

July 22, 2018

Post-Election 2018


July 22, 2018

If the PML-N loses and the PTI or a PTI-led or a Sanjrani-style coalition forms government in the centre and in Punjab, will we go back to the old level of relative freedom of speech and association?

Will a PML-N defeat on July 25 see an end to media censorship, mainstreaming of ‘religious’ militant parties? A one-time defeat of a political entity hardly calls for obvious patronage, and overkill. If our decrepit democracy needs shepherding as we haven’t yet reached a stage of awareness where we can be trusted not to hurt ourselves, won’t we need handholding for a while longer, even if we make the ‘right’ choices next week?

Since the 1990s, we have seen veto powers being wielded in all important areas of state policy by those acting as arbiters of last resort in political and institutional feuds and enjoying the power to determine the direction of the polity. But every model of exercising control has always failed within a couple of years of a new government being put in place. Why? Because Pakistan is a large messy place and running it like a puppet show is simply not possible even with the most diligent craft.

For controlled democracy to work seamlessly, we need the coercive consensus that is manufactured every decade in favour of ‘controlled everything’ to evolve into a conformist consensus. And, in our 70 years, that hasn’t happened. Our constitution vests institutions with the authority to govern. The de-facto reality is the elected polar opposite. The tension between de jure and de facto thus remains, which equips those averse to controlled democracy with a potent constitutional and moral argument.

So the fault-lines remain unchanged: civil versus military (or elected versus unelected, with the judiciary historically acting as a junior partner of the unelected); rationalism versus extremism; and provincial autonomy versus central control. To state the obvious, the control model doesn’t sit well with constitutionalism and rule of law (more so after the 18th Amendment that has bolstered provincial autonomy) as the constitution recognises the military as a subset of the executive and gives it no authority to act as a check on elected institutions.

The tension between the de jure and the de facto is structural. The de-facto system has claimed power for itself while the de jure shoulders the responsibility. This separation of power and responsibility notwithstanding, the power that the de facto enjoys faces a crisis of legitimacy. The de jure has formal legitimacy, which it is robbed of due to its non-performance – coupled with a hostile narrative supported by the de facto that projects it as corrupt and depraved. With politicos denuded of moral authority, the de facto trumps the de jure despite the constitution.

The constitution backs the de jure and continuation of the de jure weakens the ability of the de facto to exercise control from behind the curtain. Thus the de facto is in constant need to puncture the legitimacy of the de jure. And even when the de jure is painted black in public perception (ie post-Panama), no one argues that we ought to replace the de jure with the de facto. Even dictators who molested the constitution and usurped political power insisted that they were working towards better democracy and not a better alternative to democracy.

This makes our polity inherently unstable. We are caught in a vicious cycle created by the push and pull of the de facto and the de jure. This places the judiciary between a rock and a hard place too: should it justify the de facto by relying on the doctrine of necessity; look the other way when exercise of power without legal authority is in everyone’s face; or take on the de facto backed by courage of constitutional conviction? Unless there is consensus over accepting the de facto and amending the constitution or ending the cycle of intervention by the de facto for good, we are stuck in a quagmire.

Will we find a way out of this conundrum post July 25? Let’s assume the PTI wins and forms government. Imran Khan is a popular leader. Once vested with de-jure power and having achieved his decades-old ambition, will he play second fiddle to the de facto? If he chooses to assert himself, will the de-facto system just shrug because he owns no prime real estate outside Pakistan? If the divide is between the de jure and the de facto, do individuals sitting atop either really matter? Isn’t there enough controversy in IK’s personal life for our morals to be outraged upon cue?

What about a Sanjrani-style coalition? Can that establish pre-eminence of the de facto over the de jure and settle things? There are two issues here. For how long can a prop do a permanent job that requires popular support? And can a prop run a place as complex as Pakistan that is faced with myriads of challenges, and infuse stability and confidence? The executive might have its hands tied by the de-facto system, but it still has to make hundreds of decisions every day. Is a motley crew acting as government sustainable in a polity like ours?

Can a Sanjrani-style government fix the economy for example? Will it renew faith of investors in Pakistan’s medium-term prospects? Will it be able to initiate bold structural changes that will allow us to balance our budget and end our reliance on foreign debt to stay afloat? If we don’t review our national security mindset that informs both our defence needs and our trade potential, and we don’t reconsider the priority we currently accord to non-developmental budget as opposed to human development, will placing economic initiatives like CPEC under military control or rolling back the 18th Amendment fix the economy?

The bottom line is that Experiment 2018 will fail just like all previous experiments. To move forward, and not in circles, we’ll need to fix this de facto-de jure duality. Whether it happens after another round of musical chairs between selected PMs in a Sanjrani-style coalition or via a slide into full-fledged martial law or by slapping ourselves out of this control business is up to our politicos.

Unless our political parties choose to rely on the miracle of entrenched fault-lines erasing themselves out, they will need to agree on a new charter of ethos and principles to abide by, whether in office or in opposition, as BBZ has suggested. They will need to resolve that power and responsibility must be housed together, without which accountability remains a farce. They will have to agree on a non-partisan accountability system that holds public officials to account rigorously and intelligently, without which they won’t regain moral authority.

They will have to abide by the constitutional scheme of separation of powers – ie neither invite khakis to resolve political disputes nor ask courts to step into the realm of policy when they disagree with those of the ruling party. They will have to agree that unelected institutions won’t be shielded from critique in the name of honour and sanctity; extremist groups won’t be appeased for whatever reason; provincial autonomy won’t be undermined to feed the centre’s non-developmental fiscal needs; fundamental freedoms won’t be subverted to curb dissent. One can go on...

In the run up to Election 2018 we have become a toxic place bedevilled by bigotry, hate, intolerance, hypocrisy and extreme polarisation. Shall we rely on miracles and hope July 25 will change all this?

The writer is a lawyer based in Islamabad.

Email: [email protected]

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