WERE our Senate elections an utter disgrace because the Election Commission didn’t function as a stricter schoolmaster? Should it have placed metallic chips in ballot papers and made MPs walk-thorough scanners to ensure that they didn’t sneak their votes out for loyalty verification? Should there be a law that says that midnight laws and orders will be considered a breach of the law itself? Should our Constitution address minutest details such as ungodly hours when laws must not be passed?
Laws exist to guide conduct within a society. They are published and are generally prospective in nature so that people know what the law is and can order their lives accordingly. But what if people don’t feel obliged to follow the law or think of it merely as a device to control others? Can you ensure by writing effective laws that public office holders will be men and women of integrity and decency? Can you think up a magical constitutional amendment that will force public fiduciaries and representatives to do the right thing?
After our accountability and anti-corruption laws, sadiq and ameen qualifications in our Constitution, the never-ending debates about credentials of gatekeepers of the democratic project (election commissioners, judges etc.), can we, as a last resort, also draft a Mandatory Spine Act and a Prohibition Against Doing the Wrong Thing Act? And once those too fail to cure our greed and predatory and boorish instincts, we can initiate a debate about why our society is failing to produce decent people.
The law is merely a tool. We can quarrel with it, but that won’t make us good workmen.
The law is merely a tool. We can quarrel with it, but that won’t make us good workmen. In order for the law to be effective it must be considered normative ie people must view it as a compelling reason to act in a certain way. In a rule-of-law society you can be critical of the utility of a red light. But you must still stop when the light is red. And if you break the light (even in an emergency to rush to hospital etc) and are fined, you must be willing to pay such fine as legitimate sanction.
But what if most road users don’t think stopping on a red light is necessary, even though they know the law requires them to do so? You can ask traffic wardens to enforce the red light. What if wardens too think that breaking a signal is no life-shattering event and selectively enforce the rule depending on whether the rule breaker is weak or powerful? What if those who stop at red lights out of habit or fear of challan also reconcile with others who don’t and also with the unfair wardens? How do you then write a law that makes red lights meaningful?
We speak of rule-of-law societies (and not states) and law-abiding citizens as rule of law, to be effective, depends on a positive social attitude towards the law. Can the law be meaningful if a majority thinks abiding by it is not necessary or that not abiding by it will bring no harm to them? Will the law be considered fair if it is selectively enforced, or if there is a shared general assumption that the law is a tool for coercion and no assumption of bona fide attaches to intentions of public representatives who frame and approve laws?
Are we a rule-of-law society and a democratic polity? Consider recent evidence. Last week the Supreme Court held proceedings till late in the evening issuing sermons and threats to get the federal and provincial governments to agree to a timetable for local bodies elections. It didn’t happen without the melodrama even though Article 140A unambiguously requires provinces to establish local governments and “devolve political, administrative and financial responsibility and authority to the elected representatives of the local governments”.
The president issued a midnight order changing the manner in which Fata was to elect senators. If someone had arbitrarily changed in the dark of the night the breakfast menu the Sharifs had agreed to an evening before, there would probably be hangings inside Raiwind Palace. Does the PML-N really not know that issuing midnight decrees (notwithstanding their content) to tailor election outcomes is no way to run a country? If all power wielders are convinced that discretion must always be abused to promote self-interest, can black-letter law still save us?
We have an entire chapter within the Constitution that discriminates against tribal areas denying them democracy and rule of law: Article 247 ousts the jurisdiction of parliament and the provincial assemblies in relation to the tribal areas, it denies tribal citizens the right to petition courts to enforce their fundamental rights, and vests in the president and governors arbitrary authority to administer Fata that is routinely abused. Do we not know that this is wrong? Can we deny people their rights and expect them to be loyal citizens?
Our democracy is supposed to function on a one-person-one-vote basis. It is on the basis of population numbers that constituencies are delimited. It is on this basis that the National Finance Commission is to distribute funds between the centre and provinces and seats in parliament are to be allocated to provinces. Our Constitution promises mandatory education to our kids. Can such promise be given effect if we don’t know how many kids there are and where they live? Do we not know that not holding a census it not just illegal but also ridiculous?
If democracy limps on, the assemblies that have just elected senators in 2015 will also be the ones to elect senators in 2018. In other words, votes cast by ordinary folk in May 2013 will continue to determine who sits in the Senate up until 2024. Does this make any sense?
We need urgent electoral reform. We need empowered local bodies. We need a census. We need to end Fata’s discriminatory status. We need to fix our broken justice system. We need to start enforcing our laws. Then we need to start improving them. But first we need candid admission: the fault is not in our stars but in us.
The writer is a lawyer.
Published in Dawn, March 9th, 2015