IGNORANT masses, influential landlords and bigoted clerics, strong regional groups but weak national parties and, above all, a small and disinterested middle class are collectively blamed for Pakistan’s failing democracy. Those factors are unchanging and with the passage of time, perhaps aggravating.

The lawyers and Nawaz Sharif have now come up with a new, complicating hypothesis: democracy, even in its new exuberant phase, must fail unless Iftikhar Mohammad Chaudhry returns as chief justice. What a misconception! The office of chief justice is pivotal to the rule of law, not to democracy.

Democracy in essence means rule of the people through representatives chosen by and answerable to the people. It is a form of government (with many variants — the most familiar being parliamentary and presidential) in which the powers of the majority are exercised within a framework of constitutional restraints which guarantees to all citizens (not the majority alone) enjoyment of equal individual and collective rights.

Though the rule of law is not a basic ingredient of a democracy the worldwide experience is that it is best ensured by the people’s own representatives rather than by a hereditary monarch or by military rulers or by ideologues of one or the other creed.

It was the limitations that the constitution imposed on institutions and the accountability of the government to the people which persuaded Winston Churchill to say in his own inimitable way: “Democracy is the worst form of government except all those other forms that have been tried from time to time.” It is in a democracy that the rights of all citizens are best protected and that is what the rule of law means. After all, courts were in session in London when the Nazi bombers were pounding the city.

It is Pakistan’s misfortune that neither its elected representatives nor its military commanders worked within the limits that the constitution placed on their authority. Even accountability by the people never bothered them. Elections were held at long intervals and when held were rigged. The middle class, which is considered to be the backbone of a modern democratic society, hardly ever voted. In the protection of rights, there wasn’t much to choose, between the democrats and dictators. These were denied or threatened under both.

A greater misfortune has been that the election commissions (comprising judges) and the courts looked the other way or connived at the violations of laws and fundamental rights. Let it be said to serve as a reminder that Z.A. Bhutto was hanged by the order of the judges and Nawaz Sharif too was held guilty of hijacking by a judge. And, just imagine, for eight years, the courts could not find the time or muster the courage to convict or acquit Asif Zardari of the charges brought up against him not by Musharraf but Nawaz Sharif.

Against this backdrop one could justifiably conclude that the generals and politicians between them have been ruling the country aided by judges for reasons which cannot stand the test of the rule of law nor of democratic norms. Now, at this promising moment in our history, the politicians, the generals and the judges, combined or separately, must not be permitted to hold democracy and the rule of law hostage to their personal interests.

The dilemma today is whether the popular reaction to the proclamation and PCO of November 2007 has really brought to a close the long and sordid chapter in which the rulers failed to abide by democratic principles and the courts to enforce the rule of law. Apparently not. No doubt Justice Chaudhry and some other judges blazed a new path by refusing to take the oath but a larger number did, and more hastened to join them.

No possible legal remedy suggests itself for the resolution of this conflict of views and clash of interests at the highest judicial level. The judges who have become beholden to the government must not stay nor should those return who have turned political. Justice Chaudhry’s threat to punish only those judges who took the oath, however, has closed all doors to conciliation on this basis.

The lawyers and political supporters of their cause now have to choose between shouting on the streets and debate in parliament. The dignity and independence of the judiciary admits of no compromises or conspiracies. It needs to be rescued from the clutches of the generals, the lawyers and the party bosses and the decision should be left to parliament. There the majority view should prevail. That is the only course now available to return to the rule of law.

The oath of a judge stands at the centre of the controversy that has divided the judiciary and plunged it into the politics of protest. Does the language of an oath prevent a judge from doing justice is the question which doesn’t get a uniform answer even from the judges. For Justice Wajihuddin Ahmad, a non-PCO judge from the past, it may distract but doesn’t prevent. That to him has been a reason compelling enough to lead an intellectual effort as opposed to rabble-rousing. The answer of Sajjad Ali Shah, who was chief justice in the trying times of Nawaz Sharif’s second government, is more categorical: ‘it doesn’t at all’. His reason is simple: conscience stands above oath.

Almost half a century ago when one Qaiser Khan was sessions judge in Mardan and this writer a trainee magistrate there, this very question of oath came up in a chit-chat. Qaiser Khan, who had a raw sense of impartiality, wouldn’t go into the logic of it but said that a judge who felt the need of an oath to do justice, or to deny it, didn’t deserve to be a judge.

Seventeen years later, it seems Gen Ziaul Haq got wind of Qaiser’s views. The prosecutors then saw to it that judgment on Z.A. Bhutto’s appeal against his conviction was delayed till the same country bumpkin Qaiser Khan sitting on the appellate bench of the Supreme Court had retired. The judges who were under oath “to do right to all manner of people, without fear or favour, affection or ill-will” then became a majority. The rest is history. Now perhaps we should look beyond the ‘oath’ to determine who is fit to be a judge and who isn’t.

kunwaridris@hotmail.com

WRITERS on public administration used to refer to Parkinson’s Law, which holds that a bureaucracy is inherently a self-enlarging creation. A unit of five functionaries, including a supervisor, to do a relatively small job may be set up. Before long, it will take on unnecessary chores and start claiming that it is overworked and understaffed.

The supervisor will want a deputy who in turn will want an assistant, and fairly soon the organisation will have increased to three times its original size. It will also have become unwieldy, less efficient and wasteful.

The same tendency works in bureaucracies outside the public sector, including political parties which, even if they have little to do, will create an army of office bearers. Posts and designations are created and awarded because men of substance will not join a party simply to promote the good of the order. They want to be able to show the folks back home that the world outside recognises their importance and value.

Witness the recent formation of central and provincial governments (cabinets) in this country. In addition to a head (prime minister or chief minister), they have senior ministers, regular ministers, ministers of state, a variety of advisors and parliamentary secretaries.

The central government following the 2002 election consisted of more than 60 ministers. The existing departments, not numerous enough to take in all of the aspirants, were chopped up into segments named ‘divisions’, to accommodate legislators whose support was needed but who would not lend support unless they were made ministers.

This practice continues even after the election of Feb 18, which was thought to have wrought radical change in the nation’s political culture. Those who emerged as winners laid claim to self-denial, insisting that they were not covetous of offices, and that they would support the government of the day if it was doing the right thing and criticise it only to show the right way. But this was mostly pretence. In fact, they all wanted jobs if they could have them. Even Maulana Fazlur Rahman’s JUI, which has only six members in the National Assembly, got away with one ministry in the central government. If the PML-Q is occupying the opposition benches, it is due to the want of an option.

This is not to say that the quest for public office and the accompanying fun is wicked. It is one of the ends of the competitive pursuit of power called democracy. A politician gets office if his party, having received the popular mandate to govern, chooses to give him one. But it is unethical for him, or even for his party, to sell its support to others to enable them to form a government. This unethical practice is still going on. It goes by the name of ‘power sharing’ and, to make it sound chaste, ‘reconciliation’.

If I may be allowed a slight digression, I should like to submit that the term, ‘reconciliation’, is being used loosely in the current political discourse. Reconciliation may be brought about between parties that have been enemies, parties at war. It is irrelevant to rivals in the game of democratic politics. There can be no democracy if there are no rivals. Opponents may quit being opponents for a time and come together in a power-sharing arrangement. But if all players come into the same team, there will be no game or, let us say, match.

Having won a solid majority in the Sindh Assembly, the PPP could have formed a viable government without the aid of others. Mr Asif Zardari, professedly moved by the spell of national reconciliation, wanted to take the MQM as a partner in the provincial government. Negotiations to settle the number of ministries and portfolios the MQM would get ensued and went through many rounds.

Not getting as much as they wanted, the MQM negotiators, claimed to be disenchanted with the PPP’s attitude and broke off the talks. But they were soon persuaded to return to the table and, on April 30, concluded an agreement, which gave them 13 out of 34 ministries (a number which is now said to have reached 52).

In pre-independence India, a provincial cabinet hardly ever exceeded 10 members and it worked well. The government of Sindh does not have to comprise 52 ministers (reports say more of them are on the way). A cabinet of 15 divided between the two parties on a nine to six basis would have been quite adequate. The tendency to think that big government is the more desirable is not unique to Sindh. The government in Balochistan could have done with five ministers but it ended up with more than 30. The same tendency has been at work in Punjab.

These governments include departments such as culture, youth affairs, technical education, public health engineering, environment, religious affairs, minority affairs, human rights, tourism in addition to the traditional and well-established portfolios. It may be assumed that politicians want to be ministers because they will then have power and the gratifications it brings. There is power to be exercised if one is a minister in charge of law and order, finance, commerce and industry, education, health, agriculture, possibly among others. But I do not see that there is any power to exercise in departments of religious affairs, youth affairs, culture, tourism, protection of minorities, human rights.

Why would then anyone want to be minister for tourism or youth affairs? There is no power here but the post still carries numerous benefits for the holder in addition to a substantial salary and allowances, such as private secretaries and personal assistants, healthcare, free furnished housing and domestic servants, several chauffer-driven automobiles, escorts, foreign trips to attend conferences on esoteric subjects , unlimited access to long distance telephone, media exposure and enhanced prestige among constituents back home.

These advantages and comforts are not to be dismissed lightly. It is surely more fulfilling to be a minister for youth affairs, with no work and a lot of fun, than to be only a neglected backbencher in the legislature.

I am not saying that none of those who become ministers have an interest in serving the public interest. But it is my impression that in far too many instances the primary objective is not as much to serve the people as it is to obtain personal gratification at their expense.

The writer, professor emeritus at the University of Massachusetts, was until recently a visiting professor at the Lahore School of Economics.

anwarsyed@cox.net

THE furor over the display of nudes at the National Art Gallery in Islamabad made me think of Partition. Both situations represent the challenge of reconciling different points of views without conflict. And both are complicated by the fact that we desire to live in a democratic society.

In the case of Partition we failed. It was perhaps the most tragic failure of our times — a million people lost their lives and over 10m lost their homes. The conflict at the National Art Gallery is the same type of problem in principle but the stakes are much smaller and we can think about how to resolve the dilemma without losing control of our emotions. Hopefully, we can draw some macro conclusions from a micro situation.

The first thing to note is that democratic governance is not equivalent to majoritarian rule. The views of a majority are not supposed to prevail unconditionally and in every circumstance. The right of every citizen has to be respected and protected as long as it is within the law. Even a law-abiding minority of one is important in a democracy.

So, the fact that the majority of people would not like a display of nudes is not sufficient argument to remove them from the gallery. At the same time, it is important to recognise that the majority does find nudes embarrassing and that their display is a deterrent to people taking their families to art exhibitions. It is also not enough to argue on the other side that nudes are acceptable in other countries. We have to find a solution in the context of our own cultural preferences.

It was encouraging to read in the news reports that many of the protesters were comfortable with a display of nudes in a private gallery but not in a public one. This provides a starting point for a solution. Why can’t we have a private section in the National Art Gallery where entry is limited to those who can choose with full knowledge of the nature of the contents?

This is not something unfamiliar. This kind of rating is routinely applied in the movie industry where films are categorised in accordance with the explicitness of the content. It is then up to the viewer to make the choice of viewing or not viewing the film.

The bottom line is that most of the time we can find rules to accommodate the rights and sensitivities of all citizens without having to resort to extreme authoritarian solutions.

And this brings us back to Partition where our leaders failed to find the rules that would have allowed minority groups to coexist in a democracy without fear of domination. The electoral rule of a single representative in a geographical constituency with a first-past-the-post system aroused concerns of majoritarian domination. The British attempted to resolve this with a system of separate electorates along religious lines but succeeded only in hardening the communal divide.

There were alternative rules available to consider. For example, till 1994 the electoral system used for the Lower House in Japan combined multi-member districts with a single non-transferable vote. The system had features distinguishing it from both plurality and proportional systems. Members were chosen from electoral districts having from two to six seats depending on the population of the district. In a four-member district, for example, the top four vote-getters were elected and the candidate who came fifth lost. The most important implication of such a system was that candidates could get elected with as little as 15 per cent of the total votes cast in a district enabling minorities to find representation even if voting was along communal lines.

It is impossible to say whether such a rule could have prevented Partition. The point to note is that the choice of an electoral system is a vital element in democratic constitutional design and that the choice of electoral rules can make or break a country. Electoral rules are also much easier to change and adapt to circumstances than other components of a political system.

The same principle holds in other situations. The intelligent choice of rules can prevent conflicts without restricting the choices of numerical minorities with perspectives at odds with those of the majority. It is often how we approach a situation that determines the results we can achieve.

The writer is the 2007-2008 Pakistan Scholar at the Woodrow Wilson International Centre for Scholars in Washington, DC. She writes at:

http://thesouthasianidea.wordpress.com