Flawed transitionist logic By Babar Sattar

Flawed transitionist logic By Babar Sattar
The News, December 08, 2007

The writer is a lawyer based in Islamabad. He is a Rhodes Scholar and has an LL.M from Harvard Law School

Prior to November 3, the transitionists were urging the judiciary to misinterpret our fundamental law to help General Musharaf claw on to power. Now they want political parties to contest elections to facilitate our country's smooth transition to another oblivion. The general's survival is contingent on preserving power and obtaining legitimacy. When the Constitution became a hurdle the transitionists advocated carving out an exception for the general to allow Pakistan to move forward. The court didn't oblige and the general scrapped the fundamental law and fired the justices. Thus once again he is confronted with his erstwhile predicament: he wields power bereft of all legitimacy. So now the transitionists wish political parties to accord him the required legitimacy so the country can move along.

But is moving along advisable if we are headed in the wrong direction? What good would it do for the country or democracy if political parties exhaust their already strained credibility to throw a blanket of legitimacy upon the general's authoritarian ways? Democracy after all isn't an end, but only a process. To be useful the concept of self-governance needs to be put into effect by constructing self-sustaining institutional structures rooted in principles and backed by procedural safeguards. Elections are an essential feature of democracy. But in the absence of other vital attributes, such as rule of law and separation of powers, the outcome of a balloting process cannot be claimed a democratic dispensation. Instead elections end up discrediting the very concept of self-governance, once the promised benefits of democracy fail to trickle down to the average citizen despite having gone through the motions of voting.

Elections provide a mechanism for selection and change of political leaders at fixed intervals. But in the absence of supportive structures they do not necessarily produce responsive and scrupulous governments. Elections, for example, cannot ensure that balloting will not be reduced to a bout between equally discredited and tainted leaders. The right to vote alone doesn't function as a protector of individual liberties -- freedom of speech, press and assembly or protection against arbitrary arrest. Elections do not automatically usher in civilian control of the military. Expression of political equality at the ballots doesn't necessarily translate into equality before the law. And there are no guarantees that elected governments won't function in an autocratic or arbitrary manner -- Pakistan in the 1990's and present day Russia being cases in point.

Rule of law and a system of separation of powers together with the electioneering process constitute the form and substance of democracy. The rule of law simply means that government authority can be legitimately exercised only in accordance with written and publicly disclosed laws, adopted and enforced in accordance with required procedural formalities (due process). While it took civilization centuries to establish that existence or non-existence of power is a matter of law and not of fact, the transitionists wish our legal and political structures to acknowledge and reflect the 'ground reality' that might is right.

The existence of a power based in law as well as the ambit and extent of such power is to be determined objectively and that makes an independent judicature a quintessential feature of rule of law. An independent court is a prerequisite as well as a vanguard of the democratic process, without which elections would only produce a caricature of democracy. We have repeatedly mutilated our constitution and the legal integrity of our jurisprudence by justifying blatant illegalities in the name of necessity. If as a nation do not even challenge a dictator who reduces our fundamental law and vital state institutions to nothing, is the constitution even worth the paper it is written on?

The difference between the command of a policeman and a gunman is captured by the word 'legitimacy'. If we continue to expand the concept of legitimacy to include all 'ground realities', the very concept will lose meaning. If the Constitution has no sanctity and can be abrogated at will by whoever wields military force in the country, would an elected government exercise any power other than that delegated to it by the military?

If we sacrifice our independent justices at the altar of expediency, the resultant expressive, institutional and intellectual harm will be consequential. First of all, this is first time in the country's history that the judicature, as an institution, has rejected an unconstitutional order backed by force. It is clear that the general wishes to make an example out of the defiant justices, and for good reason. If this trend of adhering to the principles at the cost of personal liberty and livelihood catches on, it could sound the death-knell of our prevailing culture of unscrupulous pragmatism that worships even ill-begotten success. But on the other hand if it dies down, we as a nation would have sold our soul and spirit to the devil.

Second, in a common law jurisdiction the judgments produced by courts form the law. This makes the intellect of a judge almost as important as his integrity and independence. It is indeed a marvel that intellect and integrity mostly go hand in hand. By sacrificing the brightest legal minds on the bench merely to preserve the general's ego and his personal rule, we will condemn our judicature to at least a decade of mediocrity. Traditionally, it was not riches, cars or protocol that constituted an appeal for accomplished lawyers to serve on the bench, but the honour and mark of recognition a judicial office brought along. With that taken away, why would bright shining legal stars (such as Justice Umar Ata Bandial of the Lahore High Court more recently) walk away from a lucrative legal practice to join undistinguished company?

Finally, building institution and institutional conventions takes decades, but not their undoing. We are currently watching the deconstruction of a judiciary that was finally recognizing its constitutional mandate as an independent branch of the state and not an extension of the executive. While it offered no quick fixes to the myriad problems confronting Pakistan, it did provide the promise of a neutral arbiter to a citizen who was wronged by the state or by other powerful elements in the society. That promise is being taken away and we are being asked to reconcile with the reality of our prevailing morbid power structures.

The general seems to welcome a return to the days of the troika in his third stage of democratic transition as a mark of political maturity. What a travesty for the rule of law! We already have a troika in our constitutional scheme. It is called trichotomy of power between the executive, the judiciary and the legislature. Just because we won't allow this constitutional scheme of institutions wielding and separating state power to function we need to rely on a troika of individuals to run this country. By annihilating the judiciary as a protector of the constitution and the supreme dispute resolution body, we will once again return to the depraved culture of palace intrigues wherein the military functions as an arbiter of last resort.

All reasonable minds understand that elections under PCO would constitute a funeral service for the independent judiciary. But in finalizing their 'charter of demands', the issue of restoration of justices was reportedly the major stumbling block for the opposition parties. Can our political elites get more shameless? One hoped (despite common sense) that BB would have acquired a conscience in her days of exile or even the foresight to recognize this national moment as a window of opportunity to wash her past sins in abiding by principles. She would not just be the prime beneficiary of regime change in the immediate term, but could also have made a long-term investment in the longevity of her party. But her politics has made it clear that this conflict over judges is one between the elites and the people of Pakistan, and she wouldn't want the rules of the game to change when it is finally her turn again to loot the spoils.