A durable experiment?

Published December 16, 2018
The writer is a member of staff.
The writer is a member of staff.

THE damage is obvious, it is continuing and it may well be lasting. No more is there talk of a transition to democracy. That’s gone, replaced by something else. What that something else is we’re still trying to figure out.

Managed continuity seems the closest approximation so far.

But all is not equal in managed continuity.

Some of the damage is familiar, some of it new and not all of it is the same. In the big picture, the stuff with politics is the most familiar: one chap railroaded out, another chap parachuted in; one out-of-favour party put to the sword, another cobbled together into yet another version of a king’s party.

Sift through history and a case could be made that Imran in 2018 is Nawaz in 1990.

If the big-picture politics stuff is familiar, there’s one big difference this time round: the court.

Then, as now, the biggest political player was deemed unfit to lead and somewhat of a national security threat. BB had to go. And how she was dispatched. The corruption and smash-and-grab would come in the second term, but the first dismissal was also premised on corruption.

Then, all that was required was a president ready to invoke 58(2b). But the system was working together and against BB, and there was little that BB could do. Barbara Crossette of The New York Times explained it nimbly enough in a dispatch on Aug 7, 1990:

“Ms Bhutto, the first woman to head a modern Islamic state, called the action ‘illegal and unconstitutional’. At a news conference tonight, she asserted that her opponents were trying to keep her from winning the next election, but that she believed she had the popular support to return to power.

“She said her Pakistan Peoples Party may challenge the President in court, although the grounds for such a challenge were not specified.”

Of course BB knew there was no point to a challenge.

‘“I don’t feel betrayed by the President,’ [BB] said. ‘I believe there were other elements that wanted me out.’”

Crossette explained matters to her international audience in the very next paragraph:

“Pakistan’s top military officers were present at the swearing-in of the caretaker government. Pakistanis assume that the ouster of Ms Bhutto could not have taken place without the army’s support, if not instigation. But Gen Mirza Aslam Beg, the army commander, said before the ceremony that the military had not been involved in politics recently and would remain out of government in the future.”

Sound familiar?

In time, Pakistan would learn of Mehrangate and all that was done to hack a path to electoral victory for the IJI, the cast of characters Nawaz would vanquish to create his own party, the PML-N.

Imran in 2018 most resembles Nawaz in 1990. For some, that’s comeuppance for Nawaz — a creature of the system defeated by the system. For others, it’s all a bit depressing that 2018 can resemble 1990 — 28 years to end up where we began. Twenty-eight wasted years.

But if the big-picture politics stuff is familiar, there’s one big difference this time round: the court.

And that’s what may give this round greater longevity than what has come before.

Politicians fighting among themselves: it has a pattern and logic to how it builds up and crumbles. The system attempting to dismantle a party and herd its leadership out of the political arena: it has its rise and fall.

Rights trampled on, media freedoms curbed, the state’s authoritarian impulses, the people’s yearning for freedom and dissent — it is all very messy, but unstable too. The familiar is no less threatening for being familiar, but at least there’s a sense that the inherently unstable will not last forever.

But the court has changed things.

Or a changed court has changed what is possible and what is not.

A hermetically sealed judiciary, a court sealed from outside influence and control, was the long-sought goal of the judiciary and was helped along by checks-and-balances types who feared executive or military control of the judiciary.

After all, in a system where the executive and the military have always sought to subjugate the judiciary, the judiciary needed to be shielded with the maximum independence possible. So while life terms were not thought possible or desirable, much was done to protect the judiciary from outside interference, barring an outright coup, of course.

Judicial accountability, judicial promotions, the ascent to chief justice — all were rendered so that interference or manipulation from outside the judicial realm could be thwarted. The knockout blows were delivered by Iftikhar Chaudhry: the lawyers’ movement laid down a political marker, but it was the 18th Amendment case that altered structures.

By threatening to overturn the part of the 18th Amendment that reformed the process of judicial appointments, Chaudhry knocked down the last wall of judicial restraint and brought the court closer to the dream of a hermetically sealed judiciary: a judiciary answerable to no one but itself.

The 21st Amendment, military-courts case confirmed what Chaudhry had attempted: the Constitution can only be amended to the extent the court says it can be amended. And suo motu completes the picture: a superior judiciary that selects its own judges and can be held to account by no one but itself can use suo motu powers to reach wherever it decides and do as it wants.

Or, in some fairly obvious recent examples, do what the system needs — and there being nothing that anyone else can do about it.

Can’t change the court, can’t restrict suo motu, can’t remove the stuff in the Constitution that is being used to engineer political results — the weaponisation of a hermetically sealed judiciary may have given this latest experiment greater durability than much that has come before it.

The writer is a member of staff.


Twitter: @cyalm

Published in Dawn, December 16th, 2018



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