Democracy at risk

Published in The Friday Times; Friday, 15 October 2010 at 13:21.

Ejaz Haider

The lawyers, once the vanguard of the movement for the restoration of the judges and independence of the judiciary, stand discredited today. They act like common hooligans and in their approach to issues of law, even if not probity, they, the smarter ones at least, act like shyster lawyers. The law is putty that can be moulded at will with nary a regard to its spirit without which the letter can be used for much mischief. The less smart, of which there is surfeit in this crowd, simply break it.

Surprised should we be by this? Not really. Partly this rascality is owed to what we have become as a people, but only partly. The higher levels of this phenomenon to break the law to ostensibly serve the law, have to do with the movement which was riven with many a conceptual contradiction. Even the smarter leaders of the movement did not pause to explore the nuances at that time. Reason: movements must be simple; complexity never mobilises. It procrastinates. The Laertes-like attitude, infused by the smartest and for noble reasons, is now our curse.

But let’s recap.

When former General-President Pervez Musharraf removed the Chief Justice of Pakistan, Iftikhar Mohammad Chaudhry, on March 9, 2007, I was one of those millions that protested the move. No one quibbled over the terms of the presidential reference. That too was simple but we were charged. Then the CJP got restored and we said Hosannas. And then the judges got down to some serious business, as did the lawyers, wanting to bring the Musharraf house doing by huffing and puffing.

I parted ways at that point. I wrote several articles in Daily Times, starting the debate on transition and transformation and falling foul, in the process, of even some friends. The questions for me were: does throwing out Musharraf, commendable though that may be, also rid us of the imbalance between civilian-military relations? The answer was no. Is it even possible, given many variables, to posit the issue of civilian-military relations in purely dichotomous terms? I still think it is simple. Where did the principal contradiction lay, was a supplementary question and remains so to wit.

Could the judiciary, no matter how powerful, address the problems of a country? Could law be applied in a vacuum, in disregard to the political, social and other realities? Could such narrow application of law go beyond the terms of a particular case and expand to embrace the bigger picture? In other words, should the brilliance of tactics be confused with the uncertainties that inform strategy and its patient application?

Is it possible to accept at one level that the movement for getting rid of Musharraf had to see law hugging politics and then also accept that law could disregard other political realities and function on its own, in a puritanical void? Is it right to judge bigger questions on the touchstone of the immediacy of the circumstances while ignoring deeply troubling conceptual issues that are likely to rear their head even when the immediate has been “successfully” addressed?

And these are just some of the questions. The list is not exhaustive. But if I am pressed for some obvious contradictions, I would note, as I did then, that the literature on democratic transitions was clear, among other things, that if pressed too much, the army would kick the chessboard aside and start playing solitaire. Musharraf’s November 3 action proved that. Fast forward to March 16, 2009: the long march to get the CJP restored, reached a resolution when the army chief, this time General Ashfaq Kayani, intervened as arbiter. He it was who called up Nawaz Sharif as well as Chaudhry Aitzaz Ahsan to inform of the decision! Musharraf was gone; the army chief was alive – plus ça change, plus c’est la même chose.

The other important conceptual pitfall relates to whether law, while unfolding in and through politics, can seek its application in disregard to it? The army’s primacy issue having been put to rest, we now deal with this. It cannot. If it cannot be Dworkinian in its approach, it cannot be so all the way.

This is where we are stuck now. The government has decided to strike back. Its strategy is two-pronged: create a vertical fault-line between the lawyers and create a chasm between the bar and the bench. Not surprisingly, the fault-lines are also along political lines. And, while this struggle unfolds, the khaki Zeus sits atop Mount Olympus waiting to play its role. Does this even sound like the strengthening of the judiciary and of democracy, two of the movement’s avowed aims?

We see democracy pitted against the judiciary instead of the two being in harmony to strengthen, yes, democracy. Independence of the judiciary means nothing outside of the broader framework of democracy. Of course, detractors would point to all the flaws of this democracy. Sure. But do we want to try something else, especially when we have tried all else and found all the models wanting? In any case, that debate is outside the purview of this article and my argument is primarily to point to the conceptual flaw that has had consequences and I base it in how events have unfolded on the ground.

The politician we lambast all the time. This is an occupational hazard as much for the politician as it is for the journalist. But let it be said that what the judiciary is doing, despite the judges’ honourable intentions and without any reference to the specifics, is unlikely to redound either to their advantage or that of this troubled and troubling democracy.

It would be good all around if we could spare some time for conceptual sophistication.

The writer is Contributing Editor, The Friday Times

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