Law vs people’s will

Bad laws are the worst sort of tyranny.

— Burke

QUITE a few political crises in Pakistan have been caused by its rulers’ use of legal instruments to defy the demands of propriety in a society that professes to be democratic. It seems this will again be the central issue in domestic politics during the coming months.

Instances of the law being used to impose on the people decisions that they held politically unjustifiable, or to legitimise actions taken in an individual’s or parochial interest are common knowledge. Public opinion has hardly ever been convinced of the justness of such legal settlements, and yet, throughout Pakistan’s history the establishment has continued to rely on legal-looking devices to cover up its politically indefensible actions. All governments have been guilty in this regard, but military or military-led regimes have been responsible for the gravest infractions.

The sequence began within a few years of independence, when Governor-General Ghulam Muhammad’s dismissal of the Nazimuddin government could be defended as legally permissible while it was universally held to be violative of democratic norms. His arbitrary sacking of the constituent assembly may have received judicial endorsement but has never been accepted by the people as politically correct.

However, the anti-democratic precedents set by Ghulam Muhammad and his even more authoritarian successor, Iskander Mirza, or the constitutional aberrations recorded during the regimes of elected civilian rulers, from Z.A. Bhutto to Nawaz Sharif, bear no comparison to the havoc caused to democratic norms during the extended reigns of the generals.

The Basic Democracy Order and the so-called constitution of 1962, signed and proclaimed by General Ayub Khan in his sole discretion, were for long accepted by courts as valid legal instruments until the people ruled against them.

The laws arbitrarily made by Gen Ziaul Haq and his extra-democratic changes in the Basic Law never won the approval of the politically aware sections of society. Many of his legal initiatives, for example the Hudood Ordinances, the creation of parallel courts, the formalisation of his election vide a fraudulent referendum, the abuse of law to secure his political objectives via Bhutto’s hanging, the insertion of Article 58-2(b) and eligibility rules for parliamentarians fall within Burke’s definition of bad laws, their approval by the superior judiciary notwithstanding.

Some of the Musharraf regime’s measures liable to be branded bad for being contrary to acknowledged concepts of justice or democratic governance, or both, include: the graduation condition for candidates for seats in the central legislature, the bar to anyone’s third term as prime minister, the President to Hold Another Office Act, and the recently issued Reconciliation Ordinance.

The grounds for taking exception to the anti-democratic laws created or invoked by authoritarian regimes are well-known. Apart from the reference to the people’s will being the basis of authority of the government in Article 21 of the Universal Declaration of Human Rights, laws that are not made by competent authorities are generally excluded from the category of good laws.

Besides, laws that are not required in public interest and are designed to serve the personal interest of a single individual or a few (the two offices law, Reconciliation Ordinance) or assail the rights of a few (the law that bars third term as prime minister) are by universal convention considered bad. They also fail the test of the non-discriminatory application of laws. (Some other pieces of legislation in this category include the Hudood laws, the Citizenship Act and the retention of separate electorates for Ahmadis.) Regardless of the seal of validity conferred on flawed laws by courts they cannot enjoy the sanction of democratic opinion and their replacement with laws backed by the people’s will must remain high on the agenda of Pakistan’s democratic-minded parties and citizens.

This not only because the closing of the gap between a law and the people’s perception of justice and political propriety is a desirable objective in any society, the contradiction between legally permissible norms and the principles of democratic governance and people’s sovereignty have generated costly conflicts. The biggest damage to national politics has been that, instead of applying themselves to works of public good, the political outfits are driven to concentrate on the redress of wrongs done to them or to seek security for themselves by trying to exterminate the opposition. The space for rational politics has gradually been reduced.

The accountability mechanisms developed in Pakistan have generally been marred by ill-concealed attempts to provide legal cover to a regime’s narrow political interest. The selective use of legal instruments destroyed public faith in PRODA, EBDO and NAB. How a bad law undermines a laudable ideal inscribed in its objectives is fully illustrated by the recently issued National Reconciliation Ordinance.

There was a near consensus in the country on the return of all political leaders, especially Benazir Bhutto and Nawaz Sharif, from exile (the distinction between voluntary and forced exile did not matter) as an essential requisite for fair elections. There was a demand for a moratorium on politically-motivated prosecution of public representatives.

This purpose could have been achieved by a politically defensible general amnesty or an amnesty for all political figures for a limited period. The public support for them in the general election would have been a better justification for reprieving popular leaders and the decision would have been attributed to the people’s will. Instead, the establishment chose to confound the people with a law-making disaster that advances no worthwhile cause.

A result of living under laws and legal processes that are held contrary to the people’s aspirations is the decline of public trust not only in such laws but also in the judicial forums that uphold them. Further, the larger the number of anti-democratic verdicts, the greater is the eclipse of democratic norms in a society. There is good reason to argue that the series of court judgments upholding the forcible seizure of the state apparatus have devalued representative rule in the eyes of common citizens and prevented them from giving vent to the feelings of outrage that such occurrences merit.

It would be grossly unfair, however, to blame the judiciary wholly for the legitimisation of developments that are in clear breach of governance by the people’s will. To a great extent they are bound by laws and cannot always and forever protect people against tyranny by ignoring the bad laws. That they have tended to avoid using the possibilities of containing the disaster caused by disruption of representative governance available to them may well be due to the failure of political parties and the conscious citizenry to accept their role in resistance to authoritarianism.

The political parties must accept greater responsibility for compromising the position of the judiciary as well as their own credit with the people by looking on courts as the sole or even the most decisive custodians of democratic political values. True, so long as there are courts they will be approached for redress and some form of resistance to autocracy is better than total acquiescence, but political groups that wish all political issues to be decided at judicial forums undermine the sanctity of the people’s will.

Intense debates are likely to be generated over the next few weeks by judicial findings on several matters that will be essentially in the political domain. Whatever the court findings, citizens sincerely committed to representative rule will not fail to find the way to the establishment of a government deriving its sanction from the people’s will. Let that journey not be affected by disputation on the interpretation of laws drafted by persons known neither for competence nor for integrity.

Confucius on good government

THE most spectacular economic growth in the last 60 years has occurred in East Asia. In spite of being destroyed in the Second World War, Japan rose to become the second largest industrial nation. It is predicted that China’s GDP will surpass that of the US in a few decades. The foreign exchange reserves of both China and Japan are in excess of a trillion dollars.

However, the progress in East Asia has not been uniform and James Fallows, the Washington editor of the journal, The Atlantic Monthly, divides East Asia into “Confucius” and “non-Confucius” countries, the former being China, Japan, Korea, Taiwan, Vietnam and Singapore.

All these counties have shown remarkable progress not just in economic terms but also in the field of culture, music, art, sports, science and technology. These counties have also provided excellent educational and health facilities to their population. The life expectancy of the Japanese is the highest in the world and the infant mortality rate in Singapore is the lowest.

All these counties follow somewhat similar development programmes influenced by Confucian philosophy and values both at personal and national levels. Their success is a vindication of what Confucius tought and preached. This does not mean that there are no faults in the system, especially pertaining to freedom of speech and expression.

Confucius (K‘ung Ch‘iu) was born in the year 551 BC, in the province of Shantung, apparently a descendent of Emperor Huang-Ti but of illegitimate birth. Like his contemporary Socrates, he tought mostly by word of mouth and used his home as a school. He regarded himself no more than a ‘transmitter’ of knowledge, his most famous dictum being ‘Do not impose on others what you yourself do not desire.’ Confucius deliberated on many issues but this article is mainly concerned with his views on governance.

According to Confucius the first principle of good governance is that the ruler must be sincere and of impeccable character. ‘If the leader sets an example of being correct, who would dare to remain incorrect?’ Confucius asks. Here it is worth nothing that the Chinese word cheng (to govern) and cheng (to correct) come from the same root. The ruler rules by the ‘mandate of heaven’, if he becomes dishonest or corrupt, he loses this mandate.

The second principle is the appointment of right officials to manage the affairs of the state. Only persons who are well-educated, honest, hardworking and diligent should be appointed. In China, since ancient times, civil service exams were held and government servants selected on the basis of their performance in the exams.

Like Nietzche, Confucius believed that only a few individuals of exceptional ability exist in any society who sould take up the mantle of leadership. His ‘superman’ is a person of high intelligence, courage and good character. Such a person is always anxious to speak the truth. However, his intelligence is ‘intellect with its feet on the earth’ i.e. he is practical and pragmatic. He acts according to his speech and seeks the cause of his failure in himself not blaming others. He ignores slander and violent speech and displays an ‘overflowing sympathy towards all men’.

When asked by the ruler of the state of Qi about good government, Confucius is reported to have said, ‘Good government consist in the ruler being a ruler, the minister being a minister, the father being a father and the son being a son.’ In other words everyone should perform the duty assigned to him and not try to usurp the position which does not belong to him and of which he knows little.

On another occasion Confucius’ companion Tze-Kung asked him to elaborate on his idea of good government. Confucius said, ‘There are three main requirements of a good government, that there should be enough food, sufficient military equipment and confidence of the people in the ruler.’ Tze-Kung said, ‘If there is no choice and one of them had to be dispensed with, which should go first?’ ‘The military equipment,’ said Confucius. Tze-King again asked, ‘If a choice has to be made between the two, which one should be dropped?’. Confucius said, ‘Part with food, death is the lot of all men, but if people lose confidence in their ruler the state itself may collapse.’

Advocating the sparing use of punishment, he emphasises the setting of a good example by the leader. If people develop a ‘sense of a shame’ on acting improperly and indecently then punishment becomes less important. When ‘sense of shame’ disappears, criminality increases. Moral authority gives power and allows one to win a following without recourse to force.

Once Confucius was travelling with his companion Tze-loo in the countryside and found an old woman weeping beside a grave. Confucius sent Tze-loo to enquire the cause of her grief. She said, ‘My husband’s father was killed by a tiger, then my husband was killed by a tiger and now my son has been killed by a tiger.’ Confucius asked, ‘Why she persisted in living in such a dangerous place?’. She replied, ‘Because there is no oppressive government here.’ On hearing this Confucius said to his student, ‘Remember what the old lady said – an oppressive government is worse then a man–eating tiger.’

In essence the Confucian philosophy is based on closely linking individuals, family, society and state as part of a single chain. The chain cannot be strong unless all its components are strong. He expresses this eloquently in this famous paragraph from the book, The Great Learning, which reads as follows:

‘The ancient who wished to illustrate the highest virtue throughout the empire first ordered well their own states. Wishing to order well their states, they first regulated their families. Wishing to regulate their families they first cultivated their own selves. Wishing to cultivate their own selves they first rectified their hearts. Wishing to rectify their hearts, they first sought to be sincere in their thoughts. Wishing to be sincere in their thoughts, they first extended to the utmost their knowledge. Such extension of knowledge lay in the investigation of things. The things being investigated, knowledge became complete. Their knowledge being complete, their thoughts were sincere. Their thought being sincere, their hearts being rectified, their own selves being cultivated, their families were regulated. Their families being regulated, their states were rightly governed. Their states being rightly governed, the whole empire was made tranquil and happy.’

The writer is a former head of the microbiology department, The National University of Singapore.

Media blitzkrieg vs the average voter

STENCH bombs are for real, and Israelis aren’t the only ones using them. They are the hottest weapon in the hands of the brave new, empowered media in Pakistan and your TV rooms their pet targets.

The gloating bombers leave one sick and gasping for fresh air, as anchormen-turned-analysts breathe their expert opinion down your neck. The talk show hosts do most of the talking, taking sides while insisting on objectivity. The circus is quite addictive because it happens in real time, and there’s hardly a dull moment.

One of the less pompous hosts told me the other day that he was a role model for his audience and felt obliged to lead his viewers by offering his expert opinion.

Myths abound. And some of the oft-repeated ones are as follows: The Musharraf-Benazir deal is unpopular with PPP voters; Benazir is being brought back by the Americans; some judges have reached an understanding with Musharraf; the people hate corrupt politicians; Gen Kayani is America’s choice; democracy has to be flawless, and it must work like a magic wand, etc. etc.

One calls such emphatic assertions myths because no trouble is taken to ascertain their credibility with the average voter. Following is a dialogue with an ordinary man, which exposes the sham behind what can be called ‘studio’ politics as seen on TV.

‘Why would anyone vote for Benazir now that she has joined hands with a dictator?’

‘Just like many did for those who are sitting with the dictator now, and many will again.’

‘So what’s the difference between Benazir and the current rulers?’

‘She has more people behind her than they do.”

‘Is that the only criterion?’

‘In a democracy, yes.’

‘What about morality?’

‘Who says politics has to be government by morality alone?’

‘But that’s Machiavellian.’

‘So was Bhutto, they said, but he was the most popular leader.’

‘So will you vote for Benazir?’

‘If she gives me hope, yes.’

‘What is hope to you?’

‘I am 42, married, with children and jobless.’

‘They say it is America that’s bringing her back?’

‘I don’t watch TV; don’t know.’

‘What if it’s true?’

‘Who hasn’t toed America’s line all these years? If that could now turn things around for me I’d be thankful to America.’

‘You are voting for her?’

‘I haven’t made up my mind yet. But who else is there? ’

‘The Islamists?’

‘They have a right to do their politics. Those who agree with them will vote for them.’

‘What if the court does not allow Benazir to contest election?’

‘If the court is to decide everything then why have elections?’

‘Shouldn’t corrupt politicians be kept from running in an election?’

‘By whom? Those who are equally or more corrupt? They’ve proved nothing against Benazir. And she did not sell off whole islands, did she? ’

‘Why pin your hope on any one if all politicians are corrupt?’

‘That’s the real world. There are only mortals to choose from, no angels. Only Pir Pagara meets angels; still he chooses to sit with the devil.’

‘Where’s this political savvy of yours coming from?’

‘I have problems to sort out: find a job that will feed my children. Hope is all I have. If there is a chance to vote for one I think will help me get what I want, I will not let it slip by.’

‘Are you a graduate?’

‘I am not. They’ve given us nothing. I can just about read.’

‘Who’s your political mentor?’

‘People like me. When we sit in the street with our tools waiting to be picked up by a construction contractor, we talk.’

‘About your dreams?’

‘About who can give us jobs, not just the daily wages.’

‘Is that your only dream?’

‘First things first.’

‘Who among the politicians is promising you this?’

‘They all will once the election campaign starts, and then I will make up my mind whom to trust.’

This man, like millions around the country, needs no prodding by the smart Alecs indulging in studio politics and trying to lead public opinion. Don’t you wish people like him were also brought to your TV screens some time?