Jun 132008
 

Barrister Ahsan’s statement is clear on this: if parliament is the biggest hurdle in the way of pushing the military back and restoring constitutionalism (we are again assuming that restoration of judges automatically means that) then the very configuration of the polity is under question and challengeable

Barrister Aitzaz Ahsan, who is the thin end of the lawyers’ wedge, said a few days ago that parliament is the biggest hurdle in the way of the restoration of deposed judges. Since Ahsan himself has been a parliamentarian and is affiliated with the political party currently in power — let’s leave aside the issue of growing differences between him and the PPP — the statement is intriguing and needs to be deciphered.

Consider some benchmarks.

Theoretically, in a parliamentary system, the parliament is supreme. It can tell anyone, including the judiciary and the crown, to take it or lump it.

Democratic systems, even at a minimal level, require some procedure to determine the will of the people. This is generally done through elections, an exercise considered essential to a non-violent aggregation of interests.

Political dissent, in a democratic system, is channelled through various devices: protests, sit-ins, marches (long and short), lobbying, media campaigns, voting out or in a party et cetera.

The assumption is that dissent relates to issues that can be resolved and are not about the very fundamentals of a system. When fundamentals are challenged, dissent crosses the line and becomes a dispute. A dispute over fundamentals can shake the very legitimacy of a political configuration, the contract which underpins the existence of state and society.

Unlike dissent, whose expression in evolved polities is institutionalised, disputes are much more difficult to resolve. They betoken a polity still in search of a legal-normative framework. Such a polity may have the trappings of democracy, elections, parliament, judiciary etc, but it remains unbalanced in the absence of a legal-normative framework accepted by all the actors.

Two things can happen. Such a polity can either witness violence or lumber from one crisis to another.

Pakistan saw the first in the erstwhile East Pakistan in 1971 and, in a much lesser degree, in Balochistan; the second, a persistent problem, has manifested itself not just in and through cycles of military rule but also the inability of the civilian enclave to get its act together. The situation has acquired bidirectional causality now, each being both the cause and effect of the problem.

Given this, what are the necessary implications of what Barrister Ahsan has said?

Since the issue of transition and transformation has already been much debated, let me not take that route and stick with just the proposition that transformation indeed is the way forward. Broadly, transformationists argue that civilian supremacy can only be achieved by pushing the military back to the barracks in one go — not through smaller steps and pacts and intermittent stages, but “in one fell swoop”.

While it is highly debatable whether civilian supremacy in and of itself can take care of the structural problems that are responsible for the current state of affairs, being more a necessary though not sufficient condition for doing so, let’s assume that it can.

We now have the following proposition: if we can push the military back to the barracks, this will result in civilian supremacy which will then result in making us a viable polity.

Let’s now see what’s stopping us from transforming. One marker of establishing civilian supremacy is to push out General (retd) Pervez Musharraf. If we can get the judges restored who he threw out using his dictatorial powers, constitutionalism will have been established and with it would come civilian supremacy.

So far so good. The problem is that the will of the people is expressed in and through political parties. These parties, despite Mr Musharraf’s blueprint, went into elections and have been voted in. The party that got the most seats, which is also Barrister Ahsan’s party, wants to do two things: one, it looks at the restoration of judges as part of a broader constitutional package; two, it does not want to rock the boat at this stage as far as Mr Musharraf is concerned.

Indeed, the only party among those that contested the election and has thrown its full weight behind the lawyers’ movement is the PMLN. Let’s also assume that it is doing so for moral and constitutional reasons and its motives are not tainted by political expediency and the desire to ultimately upstage its chief rival and current senior coalition partner, the PPP.

We run into problems. This is not an issue of dissent. It is a dispute and simply because it relates to the fundamentals of the polity. Please note that here we are again assuming that the demand by the lawyers will actually result in the supremacy of the constitution, the strengthening of the institution of the judiciary and, consequently, undermine the position of the army. Further, we are assuming this despite the fact that the demand by lawyers is not aimed at the institution of the judiciary itself because it is minimalist (restore the judges) even as its expression is deterministic (I am thankful to Moeed Yusuf for this argument).

So, despite the minimalism of the issue, it is now expressing itself as a dispute and its premise challenges the current political configuration. If the PPP is seen as protecting the interests of Mr Musharraf — and by extension the army — then it is militating against the requirement of constitutionalism and thereby civilian supremacy. It belongs to the adversarial camp.

That granted, what does one do about the party having been voted in as the largest entity? Could it be that people voted it in because it would do what the lawyers — and presumably others too — want done: restore the judges? If yes, then it has gone against its mandate. Should we wait for another five years so people can vote it out?

Yes, if we consider the system legitimate. No, if we do not.

Barrister Ahsan’s statement is clear on this: if parliament is the biggest hurdle in the way of pushing the military back and restoring constitutionalism (we are again assuming that restoration of judges automatically means that) then the very configuration of the polity is under question and challengeable.

By extension also, what has happened is mere electoralism; it is neither democracy nor constitutionalism. And since Barrister Ahsan has mentioned “parliament”, not just the “PPP”, it is safe to assume that the entire House, with the possible exception of the PLMN, is part of ancien regime that must go.

What that means and what its implications are, we shall come to tomorrow.

Ejaz Haider is Consulting Editor of The Friday Times and Op-Ed Editor of Daily Times. He can be reached at sapper@dailytimes.com.pk

Source: Daily Times, 13/6/2008

 Posted by at 8:55 am

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