The perils of judicial populism

Judges rule on the basis of law, not public opinion, and they should be totally indifferent to the pressures of the times.

- Warren E. Burger (1907-1995), Chief Justice, US Supreme Court.

The best thing that explains the Supreme Court's (SC’s) July 20 judgment is: it is never too late to mend. As is being claimed, the judgment is historic, it is daring, it is a people's verdict, and a turning point in Pakistan's history. Of course, it is all these or maybe more, but things are meaningful only in a context. Without context, they lose their import. This is more so with the SC's judgment that unanimously reinstated Mr. Justice Iftikhar Muhammad Chaudhry, Chief Justice (CJ) of Pakistan, setting aside the presidential reference against him.

Besides its own significance, what makes the judgment unusually extraordinary are the reservations, apprehensions and misunderstandings being thrown out from all the quarters concerned, including those who support it. Hence, it is of utmost importance to be able to see this judgment in its proper context so that its implications may be figured out.

There are three temporal contexts the judgment may be placed in: i) What transpired before the reference was filed against the CJ; ii) What transpired from the moment the CJ was in the Camp Office of the President of Pakistan and Chief of Army Staff, General Pervez Musharraf, to the moment the judgment was announced regarding the CJ’s constitutional petition in the SC of Pakistan, and iii) What is transpiring now after the judgment and what will transpire in future.

Let's start with the second context. It is said that the lawyers’ movement for the restoration of the CJ was inspired by political motivations and that the lawyers were committing to politics. The objection was debated at every forum. But the whole debate missed the point that neither the CJ nor the lawyers were motivated by power politics. The lawyers are not a political party. They are a heterogeneous lot composed of diametrically opposed political and religious groups and parties. The CJ was (and fortunately is) a government official and was fighting his case first in the Supreme Judicial Council and then in the SC of which he was the chief judge. He could not be shown having any such intentions. Nor has any such evidence come to the fore.

It was further objected that while traveling to address the Bar Associations in various cities, he led huge processions. The most 'valid' objection on his traveling to Peshawar by road may be why he did not fly to Peshawar? It was the first travel of the CJ after being rendered ‘ineffective’. He and his lawyers never knew that huge crowds were awaiting the CJ at every milestone.

The objection was that holding rallies was the privilege of political parties’ leaders only, and that the processions were organised by the CJ and his lawyers to build up a certain campaign. Obviously, it was not like that. The people came on their own to these rallies to show their appreciation of the CJ's 'no' to a dictator. After the Peshawar travel and address, the CJ’s lawyers began the practice of announcing the CJ's schedule about going to a city to address the Bar Associations beforehand. Did the CJ or lawyers make any call to the people to come to welcome the CJ? Never!

See what the government was doing to establish its ‘writ’, preparing the affidavits and more references against the CJ in a most bizarre manner. Last but not least, it was trying to influence the honourable judges hearing the CJ’s petition. But the question is whether the CJ himself indulged in any such activity unbecoming of his status. He never spoke a word outside the purview of the constitution. He made speeches and read papers which highlighted the constitutional working of a government and, what is most important and emblematic of his judicial activism, he exhorted the lawyers for massive public interest litigation. Is all this political?

The historic travel of the CJ from Islamabad to Lahore was an eye-opener. The government and its allies shaped things on May 12 in Karachi. The Karachi carnage was the decisive point of the battle that was being fought outside the courtroom, after which apparently the government started retreating from this front. But as the wind had changed its direction, it had to step back from this front also, leaving the ban intact on live coverage of the CJ’s travels and addresses.

Perhaps the government wanted the CJ to sit in his house and see how the court proceeds and decides about his case. From the government’s point of view, the legal community should not have come to the CJ’s aid or to his rescue. All this read together amounts to saying that they should have given the government and its machinery an arena where it could demonstrate its muscle power. That this did not happen frustrated the government, and finally made it fatally helpless. One of the more dangerous objections was that all those CJ’s processions, rallies and addresses were aimed at influencing the honourable court. Some of the CJ’s counsel also made the mistake of uttering some public statements which were unbecoming of them. The statements earned a bad impression for the lawyers’ movement, which was being waged in the name of the rule of law.

The cogency of this objection is fatal. The government, its advocates, its supporters and other independent observers were right in asking, what’s the use of this movement if the case is sub judice? They were justified in raising the questions on the nature, character and objectives of this movement. When asked would they accept the court's verdict, the counsel of the CJ used to reply that they would not if it favoured the government. They were further asked, didn’t they trust the SC? They said they did, but they would not accept a judgment like Justice Munir’s. How can one trust a thing and at the same time mistrust it? The lawyers had no clear answer to this objection. They are still without one.

If the CJ's case was before the country's highest court of law, what was the need for the lawyers, civil society organisations, political activists and ordinary people to come out on the streets? This is the trickiest question that must be answered to understand the July 20 judgment. Also, this brings us to the first context: What transpired before the reference was filed against the CJ?

There have been attempts at finding answers to the question of what transpired before the reference was filed against the Chief Justice (CJ). The focus is the judiciary’s past character. The boldest statement in this regard termed the judiciary as the B team of the Pakistan army and appealed to it to act instead as an A team. The first step towards this transformation of the judiciary was indicated by the reinstatement of the CJ. It was clarified that since in the past the judiciary had been legitimizing military takeovers, it was likely that it did come under pressure of the present military regime to make an influenced verdict. There is a view that says that had the lawyers not come out to rescue the CJ, he may have still been in a state of house arrest. It was the pressure of this movement that got him released.

When his case was before the full bench, weren’t the lawyers then supposed not to be around him? Wasn’t it up to the apex court to see to his petition? Why were the lawyers, civil society and political activists there then? It was none of their business to be around the CJ. Another such attempt presently in vogue takes strength from late Justice Dorab Patel. He is being quoted as justifying his role in the bench that validated the military takeover of General Ziaul Haq on the plea that how could a few judges stop the coup leader when a nation of 160 million remained silent?

The participation of civil society organisations and political and religious parties worked as support to the judges in stopping a coup leader. Does this prove that it was this movement that caused the judgment of July 20? Of course it did, but in the eyes of only those who hold such a view. It is the view of those who are Dorabians and believe that without such a movement no such judgment could have come from the full bench of the apex court. It means that the custodian of the Constitution, the judiciary, needs the people’s support to protect, defend and interpret the Constitution. Without this support, the July 20 verdict could not be such a historic one. If it is so, and as it seems it is so, it is most unfortunate for our country and the constitution as well.

It is here that we enter the third context. What is transpiring now after the judgment and what will transpire in future regarding the judgment? The ethos created by the judgment may appropriately be termed as judicial populism. Under the circumstances, what is more depressing is that we have no inkling of how dangerous and fatal this judicial populism may prove to be. This view is corroborated by the sheer absence of the view that judgments are made in accordance with the provisions of the Constitution. Whoever talks about the July 20 judgment, links it with the lawyers’ movement.

They admit that judges are human beings and are influenced by the circumstances prevailing outside the court. But in the same breath, they declare that they judge according to the relevant laws. They are, in fact, caught in a vicious circle. They have no way out. Why? Because they do not want to acknowledge that their movement was a spontaneous outrage against an outrageous act of a dictator that was deliberately transformed into an organised movement. The focus of their movement was the restoration of the CJ and nothing else. It is evident that it has exhausted itself the moment its goal was achieved.

No doubt, their movement gave rise to slogans of utmost importance such as an independent judiciary, rule of law, supremacy of the constitution, and civilian democratic rule. Have these goals been achieved? Or will they be achieved in the near future? The first step in this direction has already been taken with the restoration of the CJ and undermining of the anti-constitution forces and strengthening of the judiciary. Some of the signs, such as the intimidation of lawyers who disagreed with the mainstream lawyers and advocated the government’s case, now seem to have started maturing. Two recent incidents of intimidation — one of a known journalist Khalil Malik, and the other of a lawyer Naeem Bukhari by the legal fraternity — are symptomatic. This indicates that the lawyers’ movement is deliberately being transformed into judicial populism.

It may be asked why were the lawyers afraid of losing the fight? Why didn’t they trust the court? Why did they resort to agitation? Why even now are they and the representatives of civil society and the intelligentsia justifying the popular support to the court to deliver a popular judgment? The truth in fact is that they did not trust the court. Why so? The history of the court’s judgments in such matters has been disappointing altogether. It seemed as if there was no constitution. The courts were there to cook whatever was needed to be offered to the uniformed guests. With such a background, how can one, and if that one happens to be a lawyer who knows well the track record of the courts, trust the courts?

But that’s not all. The story needs to be retold. The man who inhabits the land of Pakistan has no moral values. He has no integrity of character. He is a man of flesh only. He is not a man of principle. He has no regard for the means. His ends justify his means. He has no conscience. In sum, the quality of man in Pakistan is at its lowest. How can then judges go beyond this state of affairs? It is admitted even today by everyone. Judges, whether retired or not, argue like this. After all judges are human beings. This justifies every act of theirs.

People cannot be blamed for whatever has happened. What is required of a judge is integrity of character. Judicial populism, in many people’s view, destroys whatever little is left of the rule of law in Pakistan. It will destroy supremacy of the Constitution, independence of the judiciary, and turn the society of Pakistan into adventurous warring groups of gangsters. My Lords, so many people like me who believe in the rule of law, need to be convinced that you did not need any popular movement to issue the July 20 verdict.

Note: This article was completed in August 2007.

The perils of judicial populism

Judges rule on the basis of law, not public opinion, and they should be totally indifferent to the pressures of the times.
- Warren E. Burger (1907-1995), Chief Justice, US Supreme Court.

The best thing that explains the Supreme Court's (SC’s) July 20 judgment is: it is never too late to mend. As is being claimed, the judgment is historic, it is daring, it is a people's verdict, and a turning point in Pakistan's history. Of course, it is all these or maybe more, but things are meaningful only in a context. Without context, they lose their import. This is more so with the SC's judgment that unanimously reinstated Mr. Justice Iftikhar Muhammad Chaudhry, Chief Justice (CJ) of Pakistan, setting aside the presidential reference against him.

Besides its own significance, what makes the judgment unusually extraordinary are the reservations, apprehensions and misunderstandings being thrown out from all the quarters concerned, including those who support it. Hence, it is of utmost importance to be able to see this judgment in its proper context so that its implications may be figured out.

There are three temporal contexts the judgment may be placed in: i) What transpired before the reference was filed against the CJ; ii) What transpired from the moment the CJ was in the Camp Office of the President of Pakistan and Chief of Army Staff, General Pervez Musharraf, to the moment the judgment was announced regarding the CJ’s constitutional petition in the SC of Pakistan, and iii) What is transpiring now after the judgment and what will transpire in future.

Let's start with the second context. It is said that the lawyers’ movement for the restoration of the CJ was inspired by political motivations and that the lawyers were committing to politics. The objection was debated at every forum. But the whole debate missed the point that neither the CJ nor the lawyers were motivated by power politics. The lawyers are not a political party. They are a heterogeneous lot composed of diametrically opposed political and religious groups and parties. The CJ was (and fortunately is) a government official and was fighting his case first in the Supreme Judicial Council and then in the SC of which he was the chief judge. He could not be shown having any such intentions. Nor has any such evidence come to the fore.

It was further objected that while traveling to address the Bar Associations in various cities, he led huge processions. The most 'valid' objection on his traveling to Peshawar by road may be why he did not fly to Peshawar? It was the first travel of the CJ after being rendered ‘ineffective’. He and his lawyers never knew that huge crowds were awaiting the CJ at every milestone.

The objection was that holding rallies was the privilege of political parties’ leaders only, and that the processions were organised by the CJ and his lawyers to build up a certain campaign. Obviously, it was not like that. The people came on their own to these rallies to show their appreciation of the CJ's 'no' to a dictator. After the Peshawar travel and address, the CJ’s lawyers began the practice of announcing the CJ's schedule about going to a city to address the Bar Associations beforehand. Did the CJ or lawyers make any call to the people to come to welcome the CJ? Never!

See what the government was doing to establish its ‘writ’, preparing the affidavits and more references against the CJ in a most bizarre manner. Last but not least, it was trying to influence the honourable judges hearing the CJ’s petition. But the question is whether the CJ himself indulged in any such activity unbecoming of his status. He never spoke a word outside the purview of the constitution. He made speeches and read papers which highlighted the constitutional working of a government and, what is most important and emblematic of his judicial activism, he exhorted the lawyers for massive public interest litigation. Is all this political?

The historic travel of the CJ from Islamabad to Lahore was an eye-opener. The government and its allies shaped things on May 12 in Karachi. The Karachi carnage was the decisive point of the battle that was being fought outside the courtroom, after which apparently the government started retreating from this front. But as the wind had changed its direction, it had to step back from this front also, leaving the ban intact on live coverage of the CJ’s travels and addresses.

Perhaps the government wanted the CJ to sit in his house and see how the court proceeds and decides about his case. From the government’s point of view, the legal community should not have come to the CJ’s aid or to his rescue. All this read together amounts to saying that they should have given the government and its machinery an arena where it could demonstrate its muscle power. That this did not happen frustrated the government, and finally made it fatally helpless. One of the more dangerous objections was that all those CJ’s processions, rallies and addresses were aimed at influencing the honourable court. Some of the CJ’s counsel also made the mistake of uttering some public statements which were unbecoming of them. The statements earned a bad impression for the lawyers’ movement, which was being waged in the name of the rule of law.

The cogency of this objection is fatal. The government, its advocates, its supporters and other independent observers were right in asking, what’s the use of this movement if the case is sub judice? They were justified in raising the questions on the nature, character and objectives of this movement. When asked would they accept the court's verdict, the counsel of the CJ used to reply that they would not if it favoured the government. They were further asked, didn’t they trust the SC? They said they did, but they would not accept a judgment like Justice Munir’s. How can one trust a thing and at the same time mistrust it? The lawyers had no clear answer to this objection. They are still without one.

If the CJ's case was before the country's highest court of law, what was the need for the lawyers, civil society organisations, political activists and ordinary people to come out on the streets? This is the trickiest question that must be answered to understand the July 20 judgment. Also, this brings us to the first context: What transpired before the reference was filed against the CJ?

There have been attempts at finding answers to the question of what transpired before the reference was filed against the Chief Justice (CJ). The focus is the judiciary’s past character. The boldest statement in this regard termed the judiciary as the B team of the Pakistan army and appealed to it to act instead as an A team. The first step towards this transformation of the judiciary was indicated by the reinstatement of the CJ. It was clarified that since in the past the judiciary had been legitimizing military takeovers, it was likely that it did come under pressure of the present military regime to make an influenced verdict. There is a view that says that had the lawyers not come out to rescue the CJ, he may have still been in a state of house arrest. It was the pressure of this movement that got him released.

When his case was before the full bench, weren’t the lawyers then supposed not to be around him? Wasn’t it up to the apex court to see to his petition? Why were the lawyers, civil society and political activists there then? It was none of their business to be around the CJ. Another such attempt presently in vogue takes strength from late Justice Dorab Patel. He is being quoted as justifying his role in the bench that validated the military takeover of General Ziaul Haq on the plea that how could a few judges stop the coup leader when a nation of 160 million remained silent?

The participation of civil society organisations and political and religious parties worked as support to the judges in stopping a coup leader. Does this prove that it was this movement that caused the judgment of July 20? Of course it did, but in the eyes of only those who hold such a view. It is the view of those who are Dorabians and believe that without such a movement no such judgment could have come from the full bench of the apex court. It means that the custodian of the Constitution, the judiciary, needs the people’s support to protect, defend and interpret the Constitution. Without this support, the July 20 verdict could not be such a historic one. If it is so, and as it seems it is so, it is most unfortunate for our country and the constitution as well.

It is here that we enter the third context. What is transpiring now after the judgment and what will transpire in future regarding the judgment? The ethos created by the judgment may appropriately be termed as judicial populism. Under the circumstances, what is more depressing is that we have no inkling of how dangerous and fatal this judicial populism may prove to be. This view is corroborated by the sheer absence of the view that judgments are made in accordance with the provisions of the Constitution. Whoever talks about the July 20 judgment, links it with the lawyers’ movement.

They admit that judges are human beings and are influenced by the circumstances prevailing outside the court. But in the same breath, they declare that they judge according to the relevant laws. They are, in fact, caught in a vicious circle. They have no way out. Why? Because they do not want to acknowledge that their movement was a spontaneous outrage against an outrageous act of a dictator that was deliberately transformed into an organised movement. The focus of their movement was the restoration of the CJ and nothing else. It is evident that it has exhausted itself the moment its goal was achieved.

No doubt, their movement gave rise to slogans of utmost importance such as an independent judiciary, rule of law, supremacy of the constitution, and civilian democratic rule. Have these goals been achieved? Or will they be achieved in the near future? The first step in this direction has already been taken with the restoration of the CJ and undermining of the anti-constitution forces and strengthening of the judiciary. Some of the signs, such as the intimidation of lawyers who disagreed with the mainstream lawyers and advocated the government’s case, now seem to have started maturing. Two recent incidents of intimidation — one of a known journalist Khalil Malik, and the other of a lawyer Naeem Bukhari by the legal fraternity — are symptomatic. This indicates that the lawyers’ movement is deliberately being transformed into judicial populism.

It may be asked why were the lawyers afraid of losing the fight? Why didn’t they trust the court? Why did they resort to agitation? Why even now are they and the representatives of civil society and the intelligentsia justifying the popular support to the court to deliver a popular judgment? The truth in fact is that they did not trust the court. Why so? The history of the court’s judgments in such matters has been disappointing altogether. It seemed as if there was no constitution. The courts were there to cook whatever was needed to be offered to the uniformed guests. With such a background, how can one, and if that one happens to be a lawyer who knows well the track record of the courts, trust the courts?

But that’s not all. The story needs to be retold. The man who inhabits the land of Pakistan has no moral values. He has no integrity of character. He is a man of flesh only. He is not a man of principle. He has no regard for the means. His ends justify his means. He has no conscience. In sum, the quality of man in Pakistan is at its lowest. How can then judges go beyond this state of affairs? It is admitted even today by everyone. Judges, whether retired or not, argue like this. After all judges are human beings. This justifies every act of theirs.

People cannot be blamed for whatever has happened. What is required of a judge is integrity of character. Judicial populism, in many people’s view, destroys whatever little is left of the rule of law in Pakistan. It will destroy supremacy of the Constitution, independence of the judiciary, and turn the society of Pakistan into adventurous warring groups of gangsters. My Lords, so many people like me who believe in the rule of law, need to be convinced that you did not need any popular movement to issue the July 20 verdict.

Note: This article was completed in August 2007.

What’s the game, politically speaking?

Note: I completed this article on December 9, 2014, and wrote: "(Government) ought not to be afraid of martial law the prospects of which are zero presently, rather minus." Now merely 9 months later the prospects of martial law have grown formidably positive; so what's the game, politically speaking, let's try to see:

What's the game, politically speaking?

In democracy, only a majority party is allowed to rule, and it may turn out to be a tyranny; no smaller party alone can lay a claim to that privilege. That’s the advantage of democracy one can cite while arguing with its enemies. Pakistan and other countries like it are an exception. In such countries, parties of every size can unleash a rule of tyranny under the banner of populism. Thus all the gatherings and processions of every size which such parties hold are quoted as a referendum against the government. Both Pakistan Tehreek-e-Insaf (PTI) and Pakistan Awami Tehreek (PAT) have been quite vocal in delegitimizing the government after each Jalsaa of theirs; thus PTI’s Faisalabad “lockdown” of December 8 in their wisdom has already unseated the government.

That’s because in countries like Pakistan the states have transformed themselves into Jelly States. Years back, a Swedish economist Gunnar Myrdal (1898-1987) denoted them as Soft States; he meant to say: They have rules and laws and various agencies to implement them but they do not do so, and that makes them Soft. He termed them as ridden ‘by deficiencies in legislation and, in particular, law observance and enforcement, a widespread disobedience by public officials and, often, their collusion with powerful persons and groups ... whose conduct they should regulate.’ Since then that quality of Softness of states has further deteriorated; it appears that quality has now acquired the characteristics of Jelly, a shapeless thing which fits in with any shape under any type of pressure. That’s how Pakistani state looks like now!

On the one hand a group of just a few hundred or thousand men armed with sticks can paralyze the Pakistani state; that has already happened this August in Islamabad; that happened in Faisalabad too, and is destined to happen in other cities; and on the other hand, though the present government is all determined to try a military general for allegedly committing High Treason but is facing formidable hurdles at every step; all that testifies that the Pakistani state is but helpless in establishing its writ in every domain. Here it doesn’t matter whether it has got the will to establish its writ or not, because there is no way to know but through its own efforts which it may put in establishing its writ and with the help of which it may be ascertained that it is intent upon establishing its writ.

Let’s pick out three areas to see are there any efforts being made on the part of the state to establish its writ. First is Taliban, who openly challenge the state and want to capture it through an armed struggle. The state completely failed on this count; for many years it let thousands of innocent citizens to be killed by these fanatic warriors and remained mired in its own policy of appeasing them and their supporter groups and parties. Now there is an operation going on, whose range and scope is still not clear. The second area relates to politics. A number of religious and political groups and parties openly challenge the state just like Taliban; they rather blatantly indulge in unlawful rhetoric and behavior so often that makes one wonders are they above the law of the land. Not only are parties like PAT and PTI part of this club of privileged politicians, there are a number of groups and parties which use religion to further their political aims and objectives and though their social base may not be more than a few thousand supporters but they and their leaders work like mafias using arms and fascistic ploys and whenever they want they paralyze the whole cities, and the state seems totally helpless!

As has already been mentioned the third area is where the present government, which is at the moment in command of the state of Pakistan, is trying its hardest to bring a usurper general to book; that the Pakistan Muslim League (N)’s government is doing that in the face of fatal odds is no secret now. And the do-and-die and destabilizing politics of PTI needs to be explained in that context also.

In view of the above, one lesson, which every political analyst and politician be he in the government or outside of it needs to learn, is that political actions are not judged by the intentions of their actors, i.e. political parties and leaders, but by their impact and consequences. That’s the first and in a sense last tool of any political analysis; because in its absence no political action may be understood in terms of its impact. As for the intentions of anybody, one can never be sure of; and of course, when a murder occurs, it’s a murder only, though the circumstances are taken into account which prompted that murder; however, the fact of that murder is never disputed, which is a consequence of the circumstances. For instance there may develop a consensus what impact the PAT and PTI politics during this August-October and PTI’s present politics is having on various things including the state and its writ, but never on their intentions.

Unfortunately, from those who are at the helm of affairs of the state and the politicians to those who form the circles of opinion and political following no one is serious in taking into consideration how the present politics of PTI is weakening not only the writ of the state but state itself. Hence, it is this third area of politics where the present government which manifests the state of Pakistan at the moment must establish its writ. It ought not to be afraid of martial law the prospects of which are zero presently, rather minus. It ought to bring the state of Pakistan into the shape which the provisions of its constitution endow it with. It ought not to allow the society of Pakistan slide into a chaos which may result in a civil war. It’s time the state of Pakistan must act to establish its writ in the political domain where it is required to be established first!

Why Pakistan is not a viable state?

Better to start with two clarifications: First, this piece does not raise the question of Pakistani state’s viability in the sense Pakistan’s Leftists and liberals are wont to discuss it. They say something like that: It’s unviable because it was created by the British in line with their policy of Divide and Rule; It’s unviable because it was created by the narrow-mindedness of Hindus or the Congress, or the stubbornness of Muslims or the League. They also hold that: It’s unviable because religion is never the basis of any state. The writer prospectively believes that states are not rational entities; they may come into existence, and disintegrate and disperse into more entities with or without any rational justifications. It’s like individuals or groups of human beings who want to live separately for any concrete or imagined grievances or none at all that states are born and withered. The crux of the argument is that what’s important is not how and why new entities of states emerge, what’s fatally important is how the newly emerged states live, grow and perform on the scale of their citizens’ rights and well-being.

Second clarification tries to address the universally prevailing view of Pakistan as a failed or failing state. This view derives its arguments mostly from political and economic realms. It’s a complex argument comprising many a heterogeneous theses. For instance, it raises such issues: Military’s hegemony vis-à-vis civilian and political affairs; Intelligence agencies’ role in political and state’s affairs; Absence of democratic values and democratic polity; Centre’s hold; Provincial disharmonies; Ethnic resentment; Linguistic discords; Economic subservience of lower classes; Inefficient state machinery; Separation of the East Pakistan as Bangladesh; etc. Various combinations of such politico-economic factors invite the epithet of a failing and disintegrating state for Pakistan. The writer has nothing to do with this view either.

The above-discussed factors do make sense of what has been and is happening right now in Pakistan. One may quip: The political drama being played at the moment in Islamabad proves the unviability of the state of Pakistan! The writer wants to push the argument deeper into the political abyss Pakistan has been thrown into; and, aims at going beyond the constitutional argument for the viability of a state. That no doubt applies to the first two decades or so of Pakistan’s history, when there was a display of various constitutions appearing and disappearing on the political celluloid. Why this was the case then that now a constitution was enforced and now it stood abrogated? It is here that the argument of this writer formulates itself. Certainly it was not mere geographical, political, ethnic, linguistic, or economic differences which were responsible for the lingering constitutional crisis facing early Pakistan. It was something more and other and different than that which caused that constitutional impermanence. In fact, it was that “something” which lied behind and resulted in the formation of Bangladesh.

But what about the four decades (and the fifth lapping to this day) which lived through the company of a constitution promulgated in 1973? Where had gone that “something” during that constitutional intactness? Of course, the devil did not vanish then, but became distributed in details. The constitution was verily there, but seldom enforced and followed in letter and spirit. Up till now, it has been operated upon by three openly declared Martial Laws (1977, 1999, and 2007). As is believed and upheld by many analysts that even when the army is not in the saddle, in certain matters especially and otherwise generally it keeps the reins in its hands. Be that as it may, it is politicians the responsibility lies with whom to run the affairs of the state in accordance with the provisions of the constitution, and it is they who criminally share that with others, whoever they are. Not only politicians collude with the army and intelligence agencies, but they when in power do not bother with the dictates of the constitution. Let it be mentioned here that it completely excludes the spirit of the constitution, more significant than its letter, which never finds any followers in politicians. No denying that both usurpers and lawful rulers treat the constitution in a manner as if it is there for them to manipulate and not to abide by and follow in letter and spirit. Again it is that “something” which may clearly be seen underlying here in this type of anti-constitutional politics.

What’s that “something?” I would call it that minimum consensus which is necessary for any community of people to form into a political entity, i.e. a state. May it be noted here that it touches the boundaries of the notion of a social contract, but in itself it is not a social contract. In fact, when a community of people comes to institute a state, they first need to agree as to this intention that they are to be together in a state where whatever laws are to be made they will abide by them. That is that minimum consensus! It may be termed Writ of Law. Here it is taken for granted that not all the people may be in agreement with this or that law, and that’s natural; and that those who do not agree, even they are bound to follow that law, though they may try to amend, nullify or replace it with one of their choice. So, before a people enter into a social contract, they require a minimum consensus that whatever laws are enacted, regardless of their agreement or difference with them they will follow them.

Contrary to it, now and then this or that group of people, which does not agree with a set of laws, and instead of trying to get them changed in a prescribed manner, comes to violate and challenge that minimum consensus which ensures the intactness of that political union they are part of. That makes that political entity or state unviable. It is in this sense that the state of Pakistan is unviable, and presently it is PTI and PAT which are trampling that minimum consensus in the name of Azadi and Inqilab. Pakistan’s political history of about 7 decades proves that point. Be it prior to the 1973 constitution or after it, that minimum consensus has always been at stake. It is at stake now also!

Note: This article was completed on September 11 and was originally posted in October 2014.

My new book, "Pakistan's Democratic Impasse: Analysis and the Way Forward" published / released

Here is the media release:

New book - “Pakistan’s Democratic Impasse” published

The book indicts politicians as the main culprit for failing the state of Pakistan

The book falsifies the myth of blaming the Pakistan Army for the ills Pakistanis facing

Author argues constitution authorizes politicians to rule, not the Army 

 Lahore April 8, 2014: Alternate Solutions Institute released today Dr. Khalil Ahmad's new book, Pakistan’s Democratic Impasse – Analysis and the Way Forward. Already this in 2012 and this February, he has published three books, "Pakistan Mein Riyasti Ashrafiya Ka Urooj" (The Rise of State Aristocracy in Pakistan, February 2012), “Siyasi Partian Ya Siyasi Bandobast: Pakistani Siyasat Ke Pech-o-Khum Ka Falsafiyani Muhakma” (Political Parties Or Political Arrangements: A Philosophical Critique of the Intricacies of Pakistani Politics, July 2012), and, Pakistani Kashakash: Tehleel-O-Tadeel aur Aagay Barhany ka Rasta (Pakistani Armageddon: Analysis, Resolution and the Way Forward, February 2014).

The book elaborates the above-stated position which the author took in three of his books and in a number of articles already published in newspapers and on his blog (www.NotesFromPakistan.blogspot.com). He holds that after so many stumbles through the 65 years of its existence, Pakistan has finally come to be: a government of the criminals, by the criminals, for the criminals. He singles out politicians as the main and the lone culprit not only for failing the citizens of Pakistan, but betraying their trust also.

The author says his book derives its rationale and insight from a reading of the constitution of Pakistan which considers the fundamental rights and the articles protecting these rights and freedoms as the core value of the constitution. His book looks beyond those articles and books, or that specific approach, which analyzes the democratic failure of Pakistan in a historical, sociological, economic, or political perspective only or in a way combining them all, and tries to see the history, sociology, economics and politics of Pakistan with an eye focused on the scheme of things the constitution of the country put in place to run the state of Pakistan.

Also, the author has tried to see the past, present and future role of politicians or political parties and Pakistan Army through the lens of the constitution, and thus his standpoint which is unprecedented and goes against the prevailing wisdom of putting the responsibility for the failure democratizing the society of Pakistan wholly and solely on the shoulders of Pakistan Army, may seem pleading the innocence of those Generals who imposed Martial Laws and disfigured the constitution; however, this book in addition to castigating the anti-constitutional acts of the Generals of the Pakistan Army holds that it is the inherent inability of the political civilian governments which did not prosecute and punish them, and in that sense vehemently censures that approach of absolving the politicians totally as unconstitutional and derisive to the constitutional manner of bringing order in a society.

The author concludes that his book not only sees bits of an already delayed indictment of the Pakistani politicians, but an opportunity also to conduct, on the basis of the same book, a thorough political audit of the performance of the political leaders and the political parties as the sole culprit who misled the political evolution of Pakistan, and constantly breached the trust of the citizens of Pakistan, as a result of which people of Pakistan were deadlocked into an impasse with no way out or forward to live their life as they wish but to live in servitude to the politicians.

In addition to suggesting ways to overcome this impasse, the author says that by putting all the burden of failures on politicians, constitutionalism and civilian supremacy in Pakistan may be strengthened, and this in due course will bring rule of law as an established norm in the country, and will bring a political culture never ready to tolerate any unconstitutional acts of any actors and flouters of the law of the land, and thus will ultimately help prepare ground not only for a decriminalized democratic polity but for democratic culture and values also to take root and flourish, overcoming the Pakistan’s chronic democratic impasse.

The author of the book, Dr. Khalil Ahmad, has been teaching Philosophy, and presently is mainly devoted to Political Philosophy. He is one of the founders of the Alternate Solutions Institute, a think tank dedicated to the strengthening of fundamental rights and rule of law in Pakistan. His most important works are "Pakistan Mein Riyasti Ashrafiya Ka Urooj" (The Rise of State Aristocracy in Pakistan), and "Charter of Liberty.”

http://asinstitute.org/node/426

Note: This was originally posted in April 2014.