Enemies of the rule of law

Pakistan is a china shop and the bull is its ruling elites. They are on the rampage since the day this shop was established. The stories of which come to light, I say which come to light, tell of the ways the bull is playing in and with the china the shop contains.

The bull of the present government of the Pakistan Peoples Party is a unique bull which believes in breaking the shop itself. The latest story of this dispensation is heart-wrenching and kills the hope that this country could ever be ruled by laws.

Today's The Express Tribune ran a story "Likely to surrender - Ex-chairman of OGRA plays hide-and-seek with sleuths." Take time to read this story which reveals how the Governor of Punjab, and Secretary General of Pakistan Peoples Party tried to protect Tauqir Sadiq, ex-chairman Oil and Gas Regulatory Authority (OGRA) and the main accused in a multi-billion rupee scam, from the National Accountability Bureau (NAB) officials who were in Lahore to arrest him. Actually for the last few days news was circulating in the newspapers and on the air-waves that he was hiding in the Governor House, in Lahore. The story also tells how from inside the Punjab police he was being tipped about the raids made by the NAB, and how he kept escaping from one place to another.

In contrast, even if he is not one of the accused in a criminal case, police arrests an ordinary citizen in no time, and if he is not available they arrest his relatives. But this high-profile case (Does law allow for high-profile cases? Practically, it seems it does!) where the highest court of the land has ordered the arrest of the ex-chairman OGRA, there are those dignitaries who are helping him escape the arrest. Aren't they committing a crime? Will the Supreme Court take notice of that? Ah, my dreams and my wishes! It's china shop and who can try the bulls!

Read this piece which I wrote earlier in December 2007 relating the same story:

Enemies of the Rule of Law

In times of crises, such as the one we are undergoing, it is safer to go back to basics than wrangle over which political party is doing wrong and which is doing right. Not only going back to the basics but sticking to them is itself a way out; since compromising on basics results in a lost sense of direction. Moreover, this helps see who is doing what and what it amounts to.

Why do we humans live together? Not only that we are gregarious in our nature, but also that we cannot live without fellow human beings. Now, as John Dewey, the great American Pragmatist said, the most pressing problem of humanity is living together. When we start living together, there arise more conflicts than even Shakespeare’s Horatio could dream of in his philosophy. So, irrespective of the differences amongst us such as that of color, caste, creed, origin, area, and thence of opinion, we form norms, values, rules, codes, etc, obeying which helps live together.

As the number of human beings increased, the conventional arrangements lost their relevance. They needed to be replaced. The new arrangements came to be formulated not very easily. The older arrangements had their dependents that resisted the change. But the underlying principle of both arrangements was the same: it is the will of the people around which every norm or code must revolve. The authority to enforce the will of the community or rules is derived from the consent of the people. In newer arrangements, the older norms, values, rules, and codes are replaced by such norms that are stringed with fines or punishments in case of disobedience with a specific authority to enforce them. This is law. For those who are in the government there is a constitution that lays out the principles of governing people, i.e. powers and responsibilities; and for those out of government, there are their rights and freedoms. But the spirit of the laws or the constitution is also derived from the will of the people. Again, the authority to enforce laws or constitution is derived from and accountable to another supreme authority, the will of the people.

Thus, whoever rules draws his authority from the consent of the people. This consent may be vocal or silent. This is sort of an unwritten contract. But when one who rules goes against the will of the people, he loses all moral authority, nay legal and constitutional authority, whether the opposition is vocal or silent. The great German idealist, G. W. F. Hegel, talks of a reflex category. That, ‘for instance, one man is king only because other men stand in the relation of subjects to him. They, on the contrary, imagine that they are subjects because he is king.’ When this veil of reflex category is lifted, there prevails will of the people in the form of revolt. This state is Revolution and is much longed for; but is, in fact, anarchy and lawlessness which benefits only those who wield might.

As regards will of the people, the back to basics is that every authority is constituted to safeguard life and property of all the individual persons. This lends itself to the derivation of another principle that binds every authority to protecting each person’s inalienable rights since what constitutes one’s life and property is one’s freedom to live a life of one’s choice, to live his ideas and beliefs, to earn, spend and dispose off his property as he wishes. In other words, one’s life and body and earnings are his property, and cannot be subjugated or confiscated by any law or authority unless he encroaches upon the rights of his fellow beings; or with his consent; or with due process of law, with his right to appeal intact.  

That means no authority can curtail these rights on any pretext; and if it happens, it amounts to a sheer breach of the contract that ultimately leave people without any option but to revolt to regain their rights and freedoms. This is to revert to an authority that rules them by the force of laws, not by the force of might.

Such are the basics of humans living together. But in the case of Pakistan the big players, military, judiciary and political/religious parties have been constantly and willfully ignoring these basics and preconditions of a civilized society. By creating an illusion of executive (a militarized executive!), judiciary and legislature working independently and separately, they thickened the reflex category veil so that people could not be able to see through it: lest they should come to know the reality that all three are a three-in-one. They tried to give their own rule a semblance of peoples’ rule: the ploy used was and is democracy and elections. The Pakistani Pragmatists termed it as political space that must be taken advantage of whenever allowed to. But that’s no principle. The argument is in vogue again to justify contesting the January 08 elections.

Hence, in this anti-people political game, when judiciary stood up for the rights of the people and for the rule of law, that reflex category veil disappeared altogether. So much so that today all the players stand completely exposed before the people. What a shame they are vulgarly naked also!

Of these, political parties are the most indecent entities. They have shown, particularly since this March, that they are arch enemies of the rule of law, and rights of the people. They just pay lip service to the civil society’s efforts of strengthening an independent judiciary. On this list of the enemies of rule of law, JUI (F) is at the top with PPP (Benzir) as the runner for the same slot. PML (N) is out to prove that no other party supports the cause of the rule of law more than it does. Imran Khan’s Tehrik-e-Insaaf promises the same thing. But the past conduct of all these and other parties leave us with no room to trust them. It can’t be ruled out that whenever there is such an opportunity, they will not be tempted to act as the King’s party. All of them have been playing that role or have been aspiring for the same, and may be in the queue for transforming themselves into another PML (Q)  or MQM.

Is there any political party or leader who ever raised voice for the rights of people to be protected and rule of law to prevail?  Did they ever speak of the supremacy of the constitution? Did they ever stand for an independent judiciary? What has changed them now? Is there a transformation or a qualitative change now that turns them into friends of the rule of law? Apart from the politics of the situation that Benazir Bhutto’s PPP’s decision to contest elections at any cost forced PML (N) and other parties to participate in the elections, there is no way of testing their sincerity and commitment to the cause of the supremacy of the constitution and an independent judiciary.

The first test ‘who contests elections is an enemy of the rule of law’ failed all of the political players regardless of their boycotting such as Jamaat-e-Islami and Tehreek-e-Insaaf. It failed as a test also. Because as the situation demands all or almost all the bigger opposition political parties such as PPP (Benazir Bhutto), PML (N), ANP (JUI (F) is no opposition party; it’s rather a partying while in opposition.) must boycott elections to render them meaningless that would eventually exert a pressure on the government to restore the pre-November 3 Martial Law judiciary, and as PPP (Benazir Bhutto) has misled them all to go for the elections, there is no way out of this morass. This has been conceded to by two great lawyers, Fakhruddin G. Ibrahim and Barrister Aitzaz Ahsan.

So, the next test ‘who does not contest elections is an enemy of the rule of law’ is in place now. Such are the travails of the politics. But this requires that whoever contests elections must be doing it first and foremost to be able to restore the deposed judiciary. Against this new situation, some players such as Tehreek-e-Insaaf and JI, no matter how sincere they are in their boycott, are making a fatal mistake. They will be out of the arena, and will have little chance to play the game to attain the objective. They have seen already to what degree they are capable of doing out of the arena.

As Barrister Aitzaz Ahsan has urged all those contesting elections to sign and take an oath to do their best to restore the “ousted” judges, all those political parties which have decided to contest the elections must have all their candidates go to the respective bar associations to sign and take that oath. This will help dilute the suspicions about their allegiance to the cause of an independent judiciary and will help them get votes also. But the test of their unconditional support to the rule of law would finally take place when they are in the parliament. In the face of a dictatorship that is intent upon tightening its tentacles to protect its interests, it is foreseeable that in case they steadfastly stand for the reinstatement of the deposed judges and do not go for any compromise whatsoever, the elected parliament would meet another throwing out and the imposition of another martial law. But that will not be the end of the story; it is from there that the story will begin anew. It will be the story of how people of Pakistan won supremacy of the constitution, an independent judiciary and the rule of law in Pakistan and how political parties that stood for the cause of the rule of law in Pakistan led them to that goal.

[This article was completed on December 11, 2007.]

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