Apr 262008

The striking down of the graduation provision provides even more leniency to those members of the elite who can rely on their family landholdings, hereditary fiefdoms and monopolistic industries to guarantee themselves a seat in power regardless of their qualifications

On April 22, 2008, a seven member bench of the Pakistan Supreme Court struck down the graduation condition for contesting elections in the Senate, National and Provincial assemblies on the basis that it went against the Freedom of Association and Equality of Citizens clauses of the Constitution.

Analysing the genesis and the eventual striking down of the graduation provision, along with the constitutional standing of the President that ordered it and the Court that has struck it down provides a grim snapshot of the deep rooted cycles of legitimacy and illegitimacy afflicting Pakistani legal and executive institutions.

The graduation provision was inserted into the Representation of People Act of 1976 in 2002 by President Pervez Musharraf through an executive order that did not receive any legislative input. It decreed that each person must be a graduate or possess an equivalent qualification to be a member of the legislature.

The question that the story of the graduation provision presents Pakistanis with is essentially this: does the striking down of an illegitimate law by an illegitimate court take us any closer to instituting the rule of law? Do the actions taken by the Supreme Court represent a double whammy of illegitimacy, a seeming act of legality to mask incipient illegalities?

The story is simple: a military ruler takes power in a coup, issues an executive order and inserts a particular provision into a Legislative Act. The same President sacks the Supreme Court and installs a new one through a similar executive order lacking in both process and constitutionality.

However, despite this machination, he is unable to win elections and a new government somewhat hostile to his power is installed. The new hand-picked Supreme Court, whose legitimacy is precarious if not non-existent sees a novel opportunity to pander to the new democratic leaders, by handing them a decision designed to profess their loyalty to the democratic “new order” which would be well served by the absence of the onerous graduation provision.

And thus, we have the sordid story of an illegitimate court striking down an illegitimate law in an unprecedented mockery of the core principles of the rule of law.

Many would denounce the framing of this debate as a war between two illegitimacies and consider it a cynical and sceptical view that evaluates the commitment of Pakistani legal institutions to the rule of law against an ideal of impartiality that is inapplicable to the personal and patrimonial politics of this nation.

A word, therefore, must be said about why such evaluation is both necessary and the awareness of these failures crucial to cease the endless cycle of legal illegitimacy that afflicts our nation.

A cessation of the continual cycle of illegitimacies, the passing of executive orders by unelected leaders, the installation of courts that pander to power rather than to the principles of justice, and the continued acceptance of decisions of these courts by new leaders who stand to benefit from them, is absolutely necessary to mark the end of a long period of legal and constitutional devolution that defines the Pakistan of today.

Apart from the legitimacy debate surrounding the graduation provision are the substantive arguments being offered to support the court’s decision. These arguments focus not on the illegitimacy of the executive order that produced the law or the illegitimacy of the court that struck it down but rather on the substantive inequality promoted by the law.

The argument proceeds thus: only 1.4 percent of Pakistan’s 160 million people hold college degrees and to reserve electoral office only for them is a violation of the principles of equality. As one recent article in a noted daily lamented, “education in Pakistan is largely a matter of opportunity rather than merit”, concluding thus that the striking down of the provision represented a step in the face of promoting social and political equality among the nation’s poor.

Smugly pretending to champion the rights of the poor in Pakistan, who are admittedly largely uneducated, this argument follows the fatally flawed route of saying that removing the “graduation provision” would suddenly reform Pakistan’s social and political equalities.

Scarcely has a bigger farce been sold to the Pakistani people as an action meant to emancipate the poor and promote the accessibility of political office. Even the most cursory glance at the members of the new parliament as well as previous members of parliaments (when the graduation provision was non-existent) provides ample evidence that it is landlords, business leaders, feudal scions and other elites who largely constitute Pakistani legislative bodies.

If the poor were never representing themselves when such a provision didn’t exist, how will its absence make them more likely to do so today? Indeed, records show that the members of the middle class, who are the few non-elite that do make it into the Senate, National or Provincial assemblies usually have graduate and even post-graduate degrees suggesting even further the superfluity of the argument.

In reality, the striking down of the graduation provision provides even more leniency to those members of the elite who can rely on their family landholdings, hereditary fiefdoms and monopolistic industries to guarantee themselves a seat in power regardless of their qualifications.

In essence then even the substantive arguments provided in favour of striking down the graduation provision, suggest that all talk of the “rule of law” aside, illegitimate judges are tolerable when their illegitimacy favours the new political order.

The delay over the reinstatement of the deposed Supreme Court judges, and now this latest act of homage provided by the illegitimate Supreme Court are all arguments that implicitly assert the reality that in Pakistan the law belongs to the ruler rather than to the ruled.

In considering the recent elimination of the graduation provision, Pakistanis must confront the desperate need to put an end to the seemingly interminable cycle of illegitimacies that afflict our legal institutions and ask ourselves whether a country governed by the educated would truly be such a bad thing after all.

Rafia Zakaria is an attorney living in the United States where she teaches courses on Constitutional Law and Political Philosophy. She can be contacted at rafia.zakaria@gmail.com

Courtesy: Daily Times, 26/4/2008

 Posted by at 8:45 am

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