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Opinion

Legal Eye

August 4, 2018

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The game of thrones

It was argued in these columns prior to Election 2018 that the PTI must win. There was no prophesy or prediction involved. 

The argument simply was that Pakistan has locked horns with itself, as it does every ten years or so.

 The de-facto regime has checkmated the de-jure regime and should the de-jure regime be returned to power by the people, the conflict between the de facto and the de jure would threaten the continuity of the political process and test our allegiance to our constitution. And we have a history of faltering when it comes to such tests.

The angled playing in the run up to Election 2018 was for all to see (even if not to talk about). Election Day rigging is a thing of the past, we told ourselves. Yet after polls closed on July 25, there came reports in real time from across Pakistan that counting wasn’t taking place in the front of polling agents (who were being thrown out of polling stations) and Form 45s weren’t being issued. It took up to a couple of days for results to be compiled even for urban centres like Karachi. The ECP says the Result Transmission System failed. Nadra says no such thing happened.

The rigging allegations this time around are different from those in 2013. Back then, the story line was dark conspiracy: Returning Officers being controlled from some monitoring centre set up by the judiciary with the caretaker CM applying ‘35 punctures’. And yet such fiction paralysed the country for a year and a half. This time, the allegations are old school: pre-election coercion of candidates to switch sides; manufacture of parties and electoral alliances (BAP, Tehreek-e-Labaik Pakistan etc); and a high rate of vote rejection and counting fraud etc.

But nothing will come out of these allegations, at least not so long as the PTI behaves. Why? Because that is how Pakistan rolls. Election 2018 being proclaimed as the birth of Naya Pakistan is truly the triumph of the oldest entrenched Pakistan. The conventional wisdom has been that those who are ousted aren’t ousted to be able to return and chide the ousters. The writing on the wall was that the PML-N would be taught a lesson. Nawaz Sharif and Maryam are in jail. The party has lost the centre and Punjab. And it isn’t sure whether to fight the de facto or court it.

What lessons would an interested bystander draw from Election 2018? Look at Balochistan. How swiftly the PML-N government was removed to install a new regime prior to Senate Election and how a new party emerged out of nowhere to win Election 2018 has been a spectacle to watch.

Look at the MQM. Divided between MQM-London, MQM-Bahadurabad, MQM-PIB and PSP, the party that ruled the roost in Karachi/Hyderabad for decades is running helter-skelter for relevance. Punjab the expedient still cares for efficient outcomes and in not wasting its vote on those marked for defeat.

In the lead-up to the election, we saw a well-choreographed media trial of the PML-N. A party that garnered 14.9 million votes in 2013 was declared guilty of being a ‘chor’. That it has still managed 12.9 million votes this time despite all odds is the real news. That the TLP, with its 2.2 million votes, is the third-largest party in Punjab is the real news. And between the media attacking the PML-N as vile and celebrating the PTI’s spectacular success as a triumph of virtue lies the duplicitous story of Pakistan and its democracy.

So what is the message of Election 2018? If you are caught on the wrong side of the system, you have nowhere to go. If you want your misfortune to be reversed, you’ve got to grovel and try and get back on the right side. And the system is not mean-spirited when it comes to responding to grovelling. It lets you back in when those who are who are installed in the de-jure system grow too big for their boots. Election 2018 has confirmed that the de facto that has continued to trump the de jure since the 1950s is still in charge. What is the lesson for the PTI in all this?

It can start with what it already knows. The Dharna wasn’t propelled by tangible evidence of rigging in 2013. It wasn’t an organic movement backed by a large chunk of citizenry disgruntled with election results. It was a sponsored protest meant to delegitimise and weaken an elected government. The slogan of electing clean and honourable leadership didn’t have much to do with corruption. The PTI would know from its experience that many with tarnished reputations and serious allegations of impropriety were sent its way to build ‘Naya Pakistan’.

It would know from its present experience of striving to bag independents to form government in the centre and in Punjab that principles and convictions have no role in such matchmaking. The cue that causes droves joining in is the same cue that can lead to them vanishing into thin air. The PTI can then combine the learning from its experience with lessons of history. Institutional imbalance and conflict is structural and not imaginary. The ensuing tension is about power and not performance.

You can deploy populism to pinch an incumbent government and sell dreams to citizens to climb into government. But in a polity facing a plethora of challenges such as ours, you can’t run a government on populism. Further, populism is the tool for those who share no burden of responsibility. It is thus the favoured tool of opposition parties and un-elected institutions. With being in government in the centre and in three provinces, the populist phase of the PTI’s existence will need to come to an end. The only thing that can replace populism is performance.

In competitive democracies divided along partisan lines (which practise first-past-the-post system), almost half the population opposes the party in government and its policies. But an elected government has the ability to implement its policy and convince the citizenry at re-election that its policies are moving the country in the right direction. All states have multiple loci of power that engage in the push and pull that informs policy. But developed democracies do not witness unelected institutions second-guessing the executive’s policies on a daily basis.

The sociology of unelected institutions will not change overnight merely because their preferred candidate is now the incumbent. The separation of responsibility from power will not vanish on its own and the resolve of the de facto to continue its control over power will not dissipate just because a protégé has arrived. NS was once the favoured son. It didn’t take long after the formation of the IJI and installing him as PM for the de facto to fall out with him. Such is the nature of power: the conflict revolves around who controls it and not how it is employed.

‘Why Nations Fail’ explained in 2011 how extractive institutions functioning in an autocratic manner tend to create political instability and legal uncertainty that hold nations back. The only thing that has been certain in Pakistan since the 1950s is the uncertainty surrounding an elected government’s prospects of completing its term. The PTI’s success in Election 2018 has transformed it from being a charge of the de facto to being the de jure. A polity where an elected government isn’t trusted with control of the state, the de jure is either the de facto’s sidekick or a competitor.

It is too early in the day to burst Naya Pakistan’s bubble with cynicism. Let’s hope the perceived conflict between civil and military or elected and unelected institutions is all a figment of sardonic imagination. That the PTI will get a free hand to lead the country out of the woods and all institutions will go back to doing their own jobs. But should that not happen, the PTI must remember that the period when the de jure is most powerful in comparison to the de facto is the first six months of its existence. If there is ever a time to take tough decisions, it is this.

Let the games begin.

The writer is a lawyer based in Islamabad.

Email: [email protected]

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