Headed towards a lawless abyss

Where do we begin? With parliament, which is being used as a sledgehammer to beat up the judiciary? Or, with the Election Commission that continues to stonewall any undoing of a fake election? Or, maybe it’s the constitution, slowly dying, that deserves our attention?

Mao said power flows through the barrel of a gun. In wars and revolutions, it does. When anything and everything is fair and there are no norms, the gun is the arbiter. But when societies move beyond this and seek a framework of consistent values, a collective covenant is reached. This is what the constitution is.

In this ‘book of few pages’, the power attached to the written word is based on a willing belief – that it is a sacred document because it reflects the will of the people. This commitment to the constitution only works if observed in letter and spirit. Otherwise, it is just ink and paper that can be disdainfully cast aside.

Its strength is the acceptance of its primacy. It is a delicate concept because it hinges on wilful observance. If this becomes the overwhelming norm, ingested and internalized, nations start to move towards rule of law.

Once legal and lawful becomes the organizing principle of the state it becomes a source of immeasurable strength. It determines the power and limits of each of its institutions. It ensures the protection of agreed-upon rights and duties and determines what constitutes obligations of the state. It also clearly defines who has the right to rule and how this will come about.

If human beings in the original instinctive state are violent and selfish, living in the collective requires order and rules. This is what constitutionalism and rule of law have done. It prevents chaos and gives space to everyone to actualize and live without fear. If this is undermined, as is being done now, the foundation of state and society collapses.

One by one, we are beginning to dismantle each of the elements that constitute a modern civilized state. The constitution is ignored and at times violated with impunity. Civil liberties have been crushed with abandon, circumventing the constant directions of the courts. Elections have been blatantly rigged to put in power complete imposters. And now a wholesale campaign is on to undermine and totally tame the judiciary.

The various tactics employed to do this can only be described as painful. Superior court judges are publicly claiming harassment and intimidation. No one has been held to account for this. Laws are being trifled with to mess up the internal workings of the courts. New constitutional arrangements are being contemplated to undermine the existing judicial order. Settled principles of succession are being set aside to favour some.

Ludicrous claims are also being made that judicial decisions are not within the ambit of the constitution. This is bizarre; since when did parties to the petitions determine whether orders passed are acceptable or not? Unfortunately, such pronouncements are being taken seriously and are providing justification for not implementing court orders. If the executive and the ECP are to decide what judgments are acceptable or otherwise, what is left of the judicial system?

The constitution being a written document acknowledges that given language limitations there could be different interpretations of its articles. It therefore gives the judiciary the exclusive right to determine its true meaning. Once this has been done, these determinations are final.

No authority besides the court can make this judgment. There can be opinions and comments. But, no entity, whether the ECP or the government or anyone else, can decide not to implement a superior court verdict because, in its opinion, it is not constitutional.

If litigant parties start assuming the authority to accept or reject court orders, the entire judicial system would collapse. It would be the end of constitutional governance and reversion to the jungle law of might is right.

Not accepting and not implementing judicial decisions is undermining the entire constitutional structure. It was done before when SC orders to hold provincial elections were not implemented and we are again in the same territory.

It is not just contemptuous. That is too soft a way to describe it. It amounts to a criminal act. It is defiance of the constitution – and that is unforgivable. Do these individuals in the government or the non-compliant institutions have any idea how much damage to the state is being caused by this?

The sad part is that some within the judiciary are giving sustenance to this outrage. As mentioned in the detailed order on the reserved seats issue, the two judges who dissented have every right to do so. But to say that state institutions should not implement this decision, as it is against the constitution, leaves one aghast. Could never imagine that we would live to see such advocacy of the majority orders of the court not being implemented.

The chief justice spoke strongly in the past against legislation through ordinances and assailed extraordinary powers vested in the CJ. Yet, when the controversial ordinance was issued, it was immediately implemented.

To say that the top court is divided would be an understatement. Justice Mansoor Ali Shah has written a beautifully reasoned letter pointing out the transgressions taking place. But it will have no effect. We are sadly entering a zone where one part of the court will not accept what the other is doing.

In all of this, my concern is the collapse of the constitutional order where judgments of the court are openly defied without consequences. This is setting a precedent that takes us on a road to complete anarchy.

The ECP appears to be the principal culprit in this, as even after the issuance of the detailed order by the Supreme Court, it is refusing to implement the reserved seats verdict.

But others are not far behind. It was sad to see speakers of assemblies writing to the ECP not to implement court orders on the ground that new laws had nullified court judgments. Parliament has a very important position in our constitutional scheme, but our constitution also has clear separation of powers. To say that parliament is supreme and can supersede court decisions is ridiculous.

All of this will come to haunt all the actors involved in the destruction of our constitutional order. This is particularly true of younger leaders such as Bilawal. They should choose their words carefully. History does not forget. We are running out of metaphors to describe the slow but sure slide towards a lawless abyss.

The writer served as the federal minister of education in the PTI’s federal government. He can be reached at: shafqatmd@gmail.com