Jun 142008

Barrister Ahsan needs to appreciate the implications of his own statement: The current parliament is part of the problem; existing political parties do not reflect the country’s new reality; petitioning this parliament is futile; even if it restores the judges, that act would neither lead to the strengthening of the institution nor bringing constitutionalism

Let’s get straight to the point. If the current parliament is part of ancien regime and the lawyers’ movement, by getting the judges restored, is poised to bring constitutionalism to this country, it is useless to petition this House on the issue and call upon it to restore them, either through an executive order or a constitutional package.

The parliament being part of ancien regime structures will either not do it or do it in a way that will ensure that the old structures stay intact. Please note that if the benchmark of constitutionalism is the restoration of judges and the parliament is dilly-dallying on that, it is attempting to secure something which the transformationists are trying to get rid of.

This is not to say that the lawyers’ minimalist demand in any case, by getting the judges restored, can a priori strengthen the institution of the judiciary. It cannot because there is no automaticity here. However, we shall continue to shun this argument for our purposes.

Seen from this perspective, Barrister Ahsan’s contention that parliament is the biggest hurdle in the way of the restoration of judges is right. Its implications, however, are that the current system, despite the electoral exercise and the outward trappings of democracy, is unsuited to the country’s new reality.

Again, we shall not go into an analysis of the “new reality” but accept it as such. We will assume that all four federating units are wedded to the “new reality” in near-equal measure; that this reality cuts across socio-economic, linguistic, ethnic and rural-urban divides. It is just there.

This would then force us into some other assumptions. That the current political parties do not express this new reality; the electoral exercise either did not express this reality; or people just voted because they have no alternative expression of this reality.

Other assumptions can flow from these. For instance, we need to know why, if this democracy is merely procedural and lacks substance at various levels, should the people vote for parties that do not encompass their expression, assuming this “expression” is indeed the “new reality”?

One could also argue that if this is indeed the case and people vote knowing it would make no difference, we face an effective collective-action problem. We will also have to figure out whether such a system can be subverted through a vote from the inside, assuming that one party comes along that does betoken the new reality, or whether that party or the people themselves will have to opt out of the system and attack it from the outside.

Be that as it may, it should be clear that such a system would not lend itself to either the strengthening of the judiciary as an institution or constitutionalism as the overhang under which socio-political and economic activity takes place by the minimalist device of the restoration of judges.

It would also mean that the lawyers’ movement cannot rely on any existing political party, no matter how vociferous it may be in support of its cause, because such a party remains a beneficiary of the current system.

The PMLN, the second largest coalition partner, is currently that party. But how can the lawyers be so sure that what the PMLN is doing is untainted by political considerations? Please note that those political considerations, despite the rhetoric, are begotten of the current system. They do not lie outside it.

If this is accepted, then the lawyers’ movement is making a big mistake. But this is not the only one. The basic flaw, which we had been steering clear of so far, relates to the assumption that restoration of judges in and of itself will strengthen the judicial institution and bring constitutionalism to the country.

Please also note that we are not talking about General (retd) Pervez Musharraf. In many ways, he may still be hanging in there but his days are numbered. Let us even assume that he is out of this equation. That still does not take care of machinations by a civilian political government; neither does it address the problem of the army’s supremacy; nor does it do anything about the vested interests of the ruling class which cuts across the civil-military divide and works on the basis of internal pacts and arrangements.

Hamza Alavi talked about this closed structural arrangement in his celebrated article, though from a class perspective. Dr Ayesha Siddiqa argues that point carrying it further in her book, Military Inc., even though she chose to make a different argument in these pages last year.

Barrister Ahsan needs to appreciate the implications of his own statement. Let’s list them for the sake of clarity.

The current parliament is part of the problem; existing political parties do not reflect the country’s new reality; petitioning this parliament is futile; even if it restores the judges, that act would neither lead to the strengthening of the institution nor bringing constitutionalism.

How can we break out of these structural binds?

One way is storming the Bastille. That being too radical, here are some suggestions.

Create a new political party. This should not be a problem if we are indeed right about the new reality, its definition and its characteristics. It is a force that permeates through society. It needs a political party to channel it. This means a longer haul but it also means solid gains.

Two, the current minimalist demand, the restoration of the judges, means nothing. It will not, given current conditions, lead to strengthening of the judicial institution or the dawning of constitutionalism — regardless of the demand being deterministic.

As a corollary, the new party’s manifesto should have a comprehensive blueprint for the creation and sustenance of the judicial institution and outline how power will be divided among the three branches of the government for a harmonious relationship.

The current Constitution must be purged of the internal discords and power-sharing mechanisms and balances clearly spelled out.

The party should start work in the masses while trying to force early elections through various devices — protests, sit-ins, media campaigns, et cetera. Even if it cannot have early elections, it should still emerge victorious in the next round.

It should be very cautious in making pacts and deals with groups and entities that are currently part of the system. It can succeed only if it prevents itself from being caught in the spider’s web.

It will also have to assume that, despite people’s power at its back, it is powerful enough not to allow any external actor (namely, the army) to subvert its gains.

If it doesn’t do any of these things, it is going nowhere. The system and its structures will remain intact.

Afterthought: Something needs to be said about English gradualness versus Continental revolutions. Hindsight tells us that gradualness brings more solid gains than upheavals. But that is another story.

Ejaz Haider is Consulting Editor of The Friday Times and Op-Ed Editor of Daily Times. The first of this two-part series appeared yesterday. He can be reached at sapper@dailytimes.com.pk

Source: Daily Times

 Posted by at 8:46 am

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