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The writer is a lawyer based in Islamabad. He is a Rhodes scholar and has an LL.M from Harvard Law School
We are being warned once again that the long march seeking independence of the judiciary will weaken a nascent democratically elected government and strengthen the non-representative forces in Pakistan. Thus, the lawyers and the civil society should back off, Chief Justice Iftikhar Chaudhry and his proponents should accept the unconstitutional ouster of judges as fait accompli in the larger national interest. And the PML-N should give up its insistence on the principled restoration of the judges and, instead, develop a working relationship with the PPP-led government.
This is a continuation of the transition-versus-transformation debate that first erupted after the Supreme Court restored Chief Justice Chaudhry on July 20, 2007. The argument of the pro-transition voices is still as flawed logically as it first was, and even if accepted, would neither lead to the strengthening of democracy in Pakistan nor the evolution of legal and political structures that are indispensable for sustaining such democracy.
After July 20, 2007, the transitionists had argued that the lawyers' movement and the Supreme Court should be content with the success achieved and should avoid locking horns with the Musharraf regime--i.e., not oppose and challenge his devious plan of using a dying assembly to crown him president for another term on grounds of principle. When Musharraf launched his coup against the judiciary on Nov 3, 2007, vandalised the Constitution and packed up the courts once again, the transitionists declared the success of their argument that altercation beyond a certain point would result in a breakdown of the system itself. We heard the same argument after Nov 3 on the issue of contesting elections. The argument again was that an election under the aegis of an unconstitutional emergency, a PCO and an NRO, was still better than a principled boycott of the electoral process.
The transitionists insisted that opting for a process that would usher in representative forces to shepherd Pakistan's transition to democracy, even if tainted by unholy compromises, was preferable to a collective bid of political forces to transform the system by strictly enforcing the fundamental law of the land. The logic of the transitionists' argument is not distinguishable from the contention of our prophets of doom: that stubborn insistence on upholding and enforcing constitutional principles, at a time when the country and its democracy are feeble and debilitated, would result in the skies caving in.
In support of the argument (and in opposition to the so-called starry-eyed idealism of the transformationists) is cited (i) the need to learn from the chequered history of Pakistan, (ii) the imperative of understanding "ground realities" of the country, and (iii) the necessity of abandoning policies that could threaten the continuity of our political process.
The need to learn from history can never be overemphasised. But the purpose of such learning must not be confused. We need to comprehend the lessons of our history, not to emulate our dismal past, but to avoid the mistakes of yesterday while charting our ascent to a better tomorrow. Likewise "ground realities" cannot be invoked to justify expediency, which has remained the bane of our existence as a nation. Pragmatism is a worthy approach to get a handle over reality and should inform the strategies being considered to pursue a desirable future. But pragmatism is merely a useful tool to uncover what "is" and must not be employed to determine "what ought to be." Once we allow pragmatism and ground realities to determine "what ought to be," we reduce ourselves to a retrogressive pro-status-quo people. After all, the status quo or the ground reality of today is what is causing despondency all around. This ground reality is not pretty and needs to be changed if we wish to carve out a better future for ourselves and our children.
The narrative of transitionists tends to confuse the acceptable argument for recognition of ground realities with a view to changing them, with the sordid one that implicitly preaches acquiescence of such ugly realities. Once we acknowledge that change is imperative to take Pakistan to a safer shore, the question then is, how is it to be accomplished?
Even on the issue of strategy the transitionists seem mistaken, for they have been unable to distinguish between compromises of policy and compromises of principle. The basis of the argument being made by the transformationists is that while competing policies towards a shared noble objective can be compromised to develop a consensual approach, a compromise of the principle will simply not lead to such an objective. The disagreement between the transitionists and transformationists is therefore not one about the pace of change or whether it can be accomplished through a disruptive or a slower-moving cooperative process.
Transformationists reject the nature of compromise being advocated by transitionists, for they believe that such fundamental compromise will undermine the desirable outcome of the much sought-after change. To give this theoretical debate some context, it is acceptable, for example, for the PPP and the PML-N to disagree over the policies that are more likely to strengthen the independence of the judiciary and constitutional rule in Pakistan. However, the compromises reached to develop a consensual position cannot be such that they undermine the principles themselves--i.e., the need to have an independent judiciary and abiding allegiance to constitutional rule.
The PPP position on restoration of the judiciary cannot be supported once it is apparent that the difference of opinion is not over the mechanics of restoration but the principle of it. A principled approach to restoration of the judges' mandates is that Chief Justice Chaudhry and all other judges deposed on Nov 3, 2007 be restored unconditionally, whether or not the Zardari-led PPP personally likes them or perceives them to be pro-PML-N.
The ruling PPP government cannot be allowed to cherry-pick desirable judges, for that would undermine the fundamental principle of judicial independence. Such an outcome can become no more palatable merely because the two mainstream parties manage to strike some compromise on the issue. Such a compromise would be one over principles and therefore unacceptable. In the event that the PPP has concerns that unconditional restitution of Chief Justice Chaudhry would resurrect a Supreme Court that is hostile to the PPP-led government, it could sit together with the PML-N to find ways to redistribute the administrative authority of chief justices in a manner that is not susceptible to be abused by any incumbent chief justice. Such a compromise would be one of policy so long as it does not dilute the principle of independence of the judiciary and separation of powers between the executive and the judiciary.
Thus, a compromise solution contrived by political parties that reduces the possibility of abuse of administrative powers presently monopolised by the office of the chief justice–to promote his personal interest, settle scores or provide cover to the acts and omissions of the ruling regime–would be extremely welcome. For such a compromise would bolster judicial independence in a cumulative sense by rendering individual judges less vulnerable to the pressure brought to bear upon them by the ruling elites through the office of the chief justice. A compromise of policy is an external compromise that would not sacrifice the ideals of justice and constitutionalism that we are hankering after. A compromise over principle, on the other hand, would only perpetuate the image of a morally bankrupt court incapable of dispensing justice and protecting the Constitution.
In similar vein, there must not be any compromise on principles to pursue the otherwise desirable objective of injecting continuity into the political process. A degenerate political process that is (i) not representative of the aspirations of the nation, (ii) doesn't produce the kind of governance that results in a trickledown of promises of democracy to the grassroots level, and (iii) doesn't espouse to instil ethics, integrity and accountability into public life, will not strengthen democracy and constitutionalism even if allowed to run uninhibited till eternity.
There are two kinds of political debate that need to be distinguished in this context. One is between the representative and non-representative forces in Pakistan. Here the message to our khaki saviours and their adherents is that there is no shortcut to democracy and continuity of the political process is the only solution to our myriad problems. And so the self-styled messiahs may please lay-off.
But, then, there is also another discourse taking place amongst the representative forces. And in this discussion we cannot spurn criticism of miserable policies, autocratic style of governance and continuation of a political culture that promotes nepotism, cronyism, corruption and expediency out of the fear that a divided political house will instantly fall to the khaki brigade. Democracy is meant to offer a level-playing field to competing political actors and discord and disagreement between such actors is an essential part of this process. A continuation of this process throws up alternatives that people can choose from. And it is preferable that there are alternatives available from within the political area as opposed to a situation where all political actors agree to take turns without being scrutinised by others under some garbled logic of camaraderie. The absence of viable alternatives from within would most certainly create an opportunity for non-representative predators.
Apathy of political actors and the civil society is the biggest threat to democracy in Pakistan, and not their vigorous and principled pursuit of desirable legal and political change.
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