OVER A COFFEE: From strategic chaos to constitutional mess — Dr Haider Shah
In addition to these checks and balances, another important feature of a modern constitutional system is the respect shown to constitutional conventions
NATO’s Chicago summit concluded with a declared resolve of transferring the job of securing Afghanistan to the Afghan security forces by mid-2013. While the international community was drawing a sketch of the endgame, Pakistan stood on the sidelines, not sure whether to earn dividends from a stable Afghanistan by becoming an active supporter of the international community or to continue its jingoistic policy in splendid isolation.
To be or not to be a partner of NATO’s stabilisation programme of a fragile Afghanistan? The Pakistani civil and military establishment finds this question difficult to answer amid the slings and arrows of outraged donors. While the NATO supply routes issue was painstakingly pushed to and fro by the political and military leadership, a new mess has been created by the ruling of the Speaker of the National Assembly about not sending the question of disqualification of the prime minister (PM) to the election commission.
Organisations are made up of human beings and as such, they have an innate survival instinct. In its survival bid, the government however is exposing the state to a great peril. As any student of law would tell us, a democratic state is founded on the key doctrine of separation of powers. Nevertheless, since complete separation can lead to dictatorship by the three organs of the state, the system is made workable by a parallel system of checks and balances. What are the options if the judiciary goes berserk? The executive can use its control of parliament to pass laws to nullify any judgement of the judiciary. Any common law principle can be overridden by enacting statutory laws. In addition to these checks and balances, another important feature of a modern constitutional system is the respect shown to constitutional conventions. With a chequered constitutional history, we have not been able to develop any conventions. Therefore, any debate of constitutional importance should also be seen in terms of conventions that are being established for our future generations.
The system of separation of powers and checks and balances, however, has not always been wholly successful. If we take a bird’s eye view of the recent history of democratic countries, we can propose a scale of reactions to the independence of the judiciary. At one extreme, we can place the Malaysian constitutional crisis of the 1980s when the then prime minister of Malaysia, Dr Mohammad Mahathir, got fed up with the independence shown by the higher judiciary in cases where the government was a party. He got the chief justice and two judges removed through a tribunal and hence nipped the independence of the judiciary in the bud. The Malaysian model was unsuccessfully attempted by General Musharraf in November 2007 and as a backlash, he is a fugitive abroad. In the middle of the continuum, we can place the Indra Gandhi model when she picked up a battle against the judiciary. The trouble started when on a petition filed by Raj Narain, who had lost an election to Indira Gandhi, Mrs Gandhi was found guilty of electoral malpractices and the election result was declared null and void by the Allahabad High Court, which also barred the PM for six years from holding any public office. The court order gave the Congress-R 20 days to replace the PM. She challenged the verdict in the Supreme Court (SC), which granted a conditional stay of execution and later formally overturned the conviction. Meanwhile, Mrs Gandhi used her parliamentary majority to change the law under which she had been convicted and also brought in constitutional amendments to take away the power of review from the judiciary in cases of elected members of parliament. The SC, while upholding the amendments, propounded the doctrine of the basic structure and thus put a restraint upon the amendment power of the legislature. The opposition parties and trade unions used the tussle between the government and the judiciary to their own advantage and galvanised popular support. Mrs Gandhi resorted to the emergency provisions of the Constitution and not only took away all fundamental rights of political workers but also populated the court with her own cronies. The emergency period is considered the darkest era of Indian political and judicial history. However, unlike the Malaysian model, Mrs Gandhi used available legal powers to fight the battle. The common voter did not like it though and she lost badly in the next elections.
On the continuum, the third kind of reaction can be seen in a recent court case involving an elected member of parliament in the UK and the judges. In the last general elections, Phil Woolas got elected as a Labour MP from the Oldham constituency. His rival candidate lodged a complaint with the election court that during the election campaign, Woolas had alleged that he was a sympathiser of terrorists, which was a lie to win public support. The court accepted the plea and declared the election void and Woolas ineligible for holding any public office for three years. The judgement created ripples in the political waters of Britain and many commentators termed it an onslaught of the judges on the sovereignty of parliament; some thought that it amounted to ridiculing the decision of the voters. The leader of the Labour Party, however, welcomed the decision, and all leaders of political parties agreed that the decision would establish a good tradition of not lying during election campaigns.
The Pakistani government has to choose one of the three models listed above, otherwise disintegration of the state will set in. The SC of Pakistan, while convicting the prime minister, had left the job of establishing the much-needed convention of resigning from office if convicted by any court of law to the political leaders. As if the strategic chaos on the international scene and anarchy in Karachi were not sufficient, the government has unfortunately chosen to add a constitutional crisis to the mess it has generated over the last few years. Hope some sanity would prevail before the situation gets out of hand.
The writer teaches public policy in the UK and is a founding member of Rationalist Society of Pakistan. He can be reached at email@example.com