Pakistani politics is full of twists and turns like a smash-hit soap opera. The curtain falls on one thrilling episode and the next starts, promising to keep the audience on the edge of their seats. The envisaged constitutional amendment to, inter alia, raise the retirement age of the apex court judges is the latest episode of our national soap opera.
Being the fundamental law of the land, the constitution defines how a country is to be governed. It also defines the relationship between the three organs of the government – the executive, the legislature and the judiciary – between the central and provincial governments; and between the governors and the governed. That’s why all over the world, with the possible exception of the UK, the procedure for amending the constitution is more rigid than that for amending an ordinary statute.
Article 239 empowers the ruling party to amend any provision of the constitution subject to the adoption of the prescribed method, which entails support of the two-thirds of the members in each house. Para 5 of Article 239 makes it clear that ‘No amendment of the constitution shall be called in question in any court on any ground whatsoever.’ Constitutional propriety, however, stipulates that any purported amendment to the constitution must meet the necessity test, which is to say that it’s the only means available to attain or promote a national objective since it seeks to amend any of the above-mentioned vital relationships.
The question here isn’t whether the ruling coalition has, or can have, the support of the required number of parliamentarians but what need there was to contemplate such an exercise at a time when the economy is in a soup, terrorists are on a rampage, and the people are struggling to survive in the face of exorbitantly high prices. Shouldn’t the rulers’ time and energies be devoted single-mindedly to pulling the nation out of the deep multidimensional crisis it’s stuck in?
In politics, as in economics, every move and every decision has an opportunity cost. When the whole government machinery is geared towards amending the constitution, its opportunity cost is the vital national business that’s short-shrifted. Again, in politics, perceptions matter more than the facts, and personal or party interests often trump national interest.
In immature democracies, like ours, where the rules of the game are clearly defined but seldom adhered to, personalities take precedence over institutions. The same institution with the same playbook to guide it may appear to act differently depending on who’s calling the shots. That’s the reason this game of thrones can have different winners and losers depending on who is in charge in the institutions that matter. That’s also the reason such polities see an ever-widening chasm between democracy as a norm and democracy as a fact.
Sixteenth-century England saw a nerve-shattering power tussle between the king and parliament. In the course of the antagonism, the royalists commissioned the services of philosopher, and the king’s tutor, Thomas Hobbes. The outcome was ‘The Leviathan’, one of the most eloquent and influential treatises on politics ever written. Understandably, Hobbes defended with full force absolute monarchy against the claims of the constitutionalists. But, curiously enough, at the same time he did away with the distinction between the de jure and the de facto sovereign.
Per Hobbes, although all institutions and all rights derived their legitimacy from royal decrees, on his part the king was entitled to govern only as long as he remained on the throne. The moment he is given the boot, his legitimacy comes to naught. Laws and customs, moral or religious precepts are important as a party stakes claim to power, but it's force or strength that in the end tips the scales. As the philosopher famously said, “Covenants without the power to enforce them are but words”. A government thus does not deserve the office if it can't hold it. Not surprisingly, Hobbes was accused of having stabbed his royal pupil in the back.
As Hobbes laid bare and as Pakistan’s political history bears out, the scramble for power is red in tooth and claw. Here the questions of morality, law, or national interest take a backseat. What is manifestly undemocratic, unconstitutional or irrational in the eyes of one party, is out-and-out worthy, nay necessary, in its antagonist’s book.
In Pakistan it’s often said, and rightly so, that neither has parliament been accorded its due status nor are civilian institutions accepted as paramount. Of the three organs of the government, the legislature seems to be the weakest even though being the repository of the popular will it should be supreme, with all other institutions being accountable to it.
By the same token, elected institutions ought to be calling the shots. But they don’t, mainly because they lack the courage to do so. They claim to be sovereign but at the same time, they’re content with playing second fiddle to the powerful. ‘Kick me but let me live’ seems to be their guide. That’s why, like Hobbes’ royal pupil, their sovereignty is a wish, or at best a claim, seldom a fact.
At the moment, all is not well, to say the least, among the institutions. But this is not a new problem that has crept up suddenly. Instead, it has been a recurrent theme in the country’s political history. How can one account for the inter-institution conflict? Can it be put down to the absence of a relevant constitutional or legal framework? Do the institutions scramble because they are working in a legal void? Are the judges not well versed in the law of the land and jurisprudence, which makes for allegedly faulty interpretations on their part?
Well, the law is there – and each institution knows well what it is. The legal framework and the role of each institution, of course, can further be clarified. But measures such as these are not likely to make a big difference. The subversion of the constitution since its inception has been an act of high treason punishable with death. But that did not hold Ziaul Haq or Pervez Musharraf back from upsetting the applecart of democracy.
The issue at hand is not in the main legal, much less ethical. In a controversial situation, says Hegel, each side considers itself to be totally in the right and its antagonist wholly in the wrong, whereas each is partly wrong and partly right. But being right or wrong is merely an academic question. One notion or movement defeats another not because it is right but because it has greater force behind it. Herein lies the difference between a successful and an unsuccessful change-maker.
In the scramble for power, democracy does not have guns or tanks to count on. The principal weapon available is popular support. No earthly power is stronger than the people. But for the people to put their weight behind democracy, they must have high stakes in the preservation of the democratic order. In the absence of such stakes, revival or overthrow of the democratic order, or for that matter induction or exit of a government, will make little difference to the vast majority of them. They may even welcome the change in the hope that the new dispensation will make them better off.
Thus, if parliament or civilian institutions wish to be paramount, not on paper but in fact, they need to look beyond dialogues and constitutional amendments – important though they are – to win the unshakable confidence of the people. Public confidence has to be earned; otherwise, the national soap opera will continue.
The writer is an Islamabad-based columnist. He tweets/posts hussainhzaidi and can be reached at: hussainhzaidigmail.com