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The path ahead

July 21, 2019

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The writer is a lawyer.
The writer is a lawyer.

“We have reached a stage in our national life where we must take stock of the mistakes committed in the past and to come up with a Charter of Governance so as to ensure that such mistakes are not repeated in future.”

— CJP Asif Saeed Khosa

POST-COLONIAL societies are often characterised by the inherent tensions between nascent democratic institutions and an overdeveloped security elite. The conflict manifests itself in the form of a constant struggle between democratic expression and authoritarian tendencies to stifle such expression.

What ensues is a ‘chilling effect’.

Critical to the authoritarian project is the suppression of all dissent, dissemination of hyper-nationalist rhetoric, intimidation of the media and opposition, and stripping away the judiciary’s independence. The PTI’s ascendance to power in last year’s general (s)election has brought this conflict to the fore once again with the opposition, media, and even the judiciary teetering as their powers are chipped away.

Opposition: Former prime minister Shahid Khaqan Abbasi’s arrest is the latest in a series of arrests under the accountability drive. Former president Asif Zardari, former prime minister Nawaz Sharif, Hamza Shahbaz, and Saad Rafique have all been ‘NAB-ed’. Contemporaneously, a delegation of opposition parliamentarians was recently pictured with the prime minister. All politics is local and politicians mastering the art of constituency politics are cognisant of the largess in store when one is aware of which side of their proverbial bread is buttered.

The government’s ability to dispense generous development funds, offer jobs to constituents, and lucrative ministries to parliamentarians may soon propel such dissident opposition members to jump the ship ‘at the call of their conscience’. Those who are not lured by the politics of patronage would meet the same fate as their leaders, ie browbeaten through accountability references or under the more pervasive narcotics law.

Media: The media has been muzzled completely. At a time when media houses suffer from severe financial constraints, the government’s ability to offer advertisements is often the fulcrum keeping them alive. Anchorpersons and journalists are compelled into self-censorship. Those who maintain any semblance of independence are cowed by incessant notices. Bloggers and social media activists, operating beyond the ambit of a formal regulatory mechanism, are disciplined through disappearances and detention.

What ensues is a ‘chilling effect’ where anything, ranging from airing interviews of leaders of the opposition to questioning the state’s security paradigm is susceptible to censorship or worse. Newspapers and magazines that refuse to mend their ways eventually capitulate under the combined pressure of an authoritarian regime and an unforgiving market.

Judiciary: Most pronounced, however, have been the regime’s pernicious attacks on the independence of the judiciary. Those who stress upon the rule of law and the supremacy of the Constitution are silenced while those who challenge nobody, unruffled no feathers, and obediently remember the limitations of their own power are hailed and acclaimed.

The recent saga concerning Judge Arshad Malik is symptomatic of a larger problem where those who are compromised and susceptible to blackmail and manipulation suit both, elected and unelected institutions. These are assets that have to be promoted and protected. Judges of integrity and character, however, have to be pushed to the peripheries, consigned to irrelevant benches, and eventually eliminated. References against judges of the superior courts, selective leaks to the media, dolling out Rs175 million to lawyers’ bodies who support such references at a time when the government purveys its austerity campaign shows the lengths the regime is willing to go to in its attempt to emasculate the judiciary.

Having said that, can the judiciary alone, without controlling either the sword or the purse, guarantee the supremacy of the Constitution? In a recent article for this paper, lawyer Faisal Siddiqui too questioned the ‘untested liberal presumption’ that the law and Constitution can on their own curtail the uninhibited de facto power of the security elite. Where, then, do we head from here?

One path was outlined by Chief Justice Khosa at the retirement reference for former chief justice Saqib Nisar, where he proposed chalking out a charter of governance after dialogue between the judiciary, parliament, and the executive including heads of the military and intelligence agencies. Anticipating reservations to his proposal on the touchstone of the doctrine of separation of powers, Chief Justice Khosa observed that “nothing in the said doctrine demands institutional isolation”.

Will we then heed his words? History suggests that attacks on political parties, media, and the judiciary are the harbinger of chaos and disaster. Will we learn from history before history repeats itself?

The writer is a lawyer.
Twitter: @MoizBaig26

Published in Dawn, July 21st, 2019