By Babar Sattar
While we continue to vie for representative democratic governance, the institution meant to be the repository and emblem of democracy is turning out to be our weakest link. In most functional democracies a new parliament discharges the maximum onus of planned legislation in its initial years when the legislators are still energized and their priorities are not excessively warped due to factionalism and considerations of re-election. But well into the second year of its existence our parliament has nothing to show for itself. Even more pitiable is the fact that in their individual capacities our parliamentarians readily lament the dismal performance of the parliament and champion the need to make it sovereign and functional; but all without the slightest inkling that it is their personal acts and omission that are the object of censure.
Our constitution prescribes trichotomy of powers, with the executive, the judiciary and the legislature as equal pillars of the state. But for all of our history – be it during prolonged spells of praetorian rule or intermittent phases of civilian autocracy – we have unfortunately only had a bloated executive encroaching over the province of the legislature and the judicature. We lay most of the blame for our deformed institutional development on the shoulders of our ‘khaki saviors’. But is such usurpation of power by khaki or non-khaki executive possible without simultaneous abdication of authority by other institutions. Our judiciary has habitually acted as an appendage of the executive and willingly exhausted its moral and legal authority in failed attempts to legitimize repeated military rule. The events of 2007 fortunately shook the judiciary out of its deep slumber, burdened the conscience of independent-minded judges and we now have a reconstituted court that seems eager to assume responsibility and discharge its constitutional obligations.
But has our parliament not learnt any lessons? Is there no realization within the legislative chambers that status quo is no longer an option and if no sensible distinction can be drawn between today’s parliament and Ziaul Haq’s Majlis-e-Shoora even well-meaning people might wonder about the need and viability of our model of democracy? Why do members of parliament seem completely oblivious to their job description as lawmakers? If our MNAs and senators continue to view their hallowed institution merely as recruitment centre for the executive or for seeking ready access to means of state patronage to be used in carrying our municipal functions within their constituencies, who will legislate for the country? How farcical that in the absence of any sense of purpose and having smugly outsourced their legislative function to the executive, our parliamentarians continue making sloppy speeches in their lacklustre debating club highlighting the virtues of parliamentary sovereignty.
What will it take to wake up our parliamentarians to the fact that our fundamental law is currently bedevilled by contradictions our legislative branch must fix? There has been complete consensus in Pakistan that General Musharraf’s actions of Nov 3, 2007, were unconstitutional. The only disagreement between minority opinion held by Musharraf-loyalists and the rest of the country was over the legal mechanism to be pursued in undoing such actions. Malik Qayyum & Co. preferred a constitutional amendment to rid the Constitution of the edicts of a dictator and the majority legal opinion favoured simple executive action rooted in the assumption that the acts of Nov 3, 2007, were void ab initio and needed no affirmative act to be undone. The latter approach triumphed with the restoration of the judiciary through an executive order. The paradox however is that the PPP-led government continues to run the country on the assumption that the laws protected under the Article 270-AAA of the Constitution are valid pieces of legislation and the parliament seem to have acquiesced in such view.
On being elected to office, our parliamentarians swore an oath to protect and defend the Constitution. One would have imagined that their first order of business would have been to address the illegality of Nov 3, affirm the content of the Constitution, validate any laws that were useful and needed to be legitimately enacted, and then move on to amend the Constitution to rid it of such parts of the 17th amendment that are undesirable. We did get mired in PPP’s flip-flops on the restoration issue. But now that we have moved on it is inexplicable why our parliament is still loath to address Nov 3? Why is it abdicating its responsibility and hoping that the Supreme Court will devise an all-encompassing miracle solution? After all there are serious limitations to what the judicature can do: it can invalidate law contrary to the Constitution, it can interpret law, but it cannot promulgate law.
Islamabad High Court, for example, was created under post-Nov 3 Constitutional amendments. Though illegitimately conceived, this is an extremely useful judicial forum that needs to be retained. Its composition should to be rethought to make it representative of all federating units. But staffed by able judges, it offers the promise of evolving expert jurisprudence in administrative law and regulatory matters, which is desirable. But it is not within the power of the Supreme Court to declare the Islamabad High Court kosher. Further, while the Supreme Court can strike down the laws protected under Article 270-AAA, while granting partial or complete amnesty to rights that might already have accrued under such laws, or allow the parliament time to validly promulgate laws it deems desirable, the court cannot pick and choose laws and executive actions on the basis of their desirability.
The apex court has no constitutional mandate to make such choices of policy, for it can only determine the legality of laws and actions based on the provisions of the Constitution and principles enshrined in our laws. It is parliament that has the mandate to amend the Constitution to legitimize the Islamabad High Court. Similarly it is an abdication of responsibility by parliament to force the Supreme Court to preserve desirable laws bunched under Article 270-AAA through contrived legal fiction rather than subjecting each piece of legislation to an up or down vote. The Supreme Court has also rightly pointed out that it falls within the competence of the parliament to provide for punishment of persons guilty of high treason under Article 6 of the Constitution. The Supreme Court can require the executive to ensure that legal mechanisms for prosecution of individuals for violation of Article 6 of the Constitution are not disabled. But it cannot make the decision of whether or not an individual is to be prosecuted for alleged violations that is reached in exercise of discretion that is vested in the executive under the law and Constitution.
The refusal to take responsibility and exercise authority cannot be attributed to nonchalance alone and is the manifestation of a larger malice: our continuing proclivity to find virtue in the logic of expediency. It is wise to let bygones be bygones we are told and move on without ruffling any feathers. But what of the feathers that need pruning? “When you belong to the community that you are trying to lead, you are part if the problem. This is particularly true when you have been a member of the group for sometime,” write Harvard professors Heifetz and Linsky in Leadership on the Line. This is the problem with the generation currently at the helm in Pakistan that grew up in an independent country without having any role in its creation, has only run the country down over the last two and a half decades, has had its consciousness nurtured by the doctrine of convenience and has an abiding faith in the ability of our nation to continue to bear the burden of a depraved amoral political and social ethic.
It is this mindset that needs to change. Equivocation and sitting on the fence is what has contributed to our sorry state. We need to be wise in crafting policies but must shun expediency when it comes to upholding principles. There is overwhelming consensus in Pakistan that we need to change the way we do business in this country and no progressive change can be built over compromised principles. Let our parliamentarians and political parties take public positions on issues such as Nov 3, prosecution of Musharraf and the NRO, instead of using the judicial process to undo the nefarious effects of vile political compromises made in chambers of power.
The writer is a lawyer based in Islamabad.
Email: [email protected]
-Source: The News-
