"When I use a word," said Humpty Dumpty, "it means just what I choose it to mean." "The question is," said Alice, "whether you can make words mean so many different things."
"The question is," said Humpty Dumpty, "which is to be master - that's all." (Through the Looking Glass) Eversince the Supreme Court decision on the NRO, assorted Mad Hatters have attempted to prove who is master, dilating on the meanings of "advice" and "consult" in reference to appointments in the superior judiciary.
Now we have new debates opening up in the shape of the 18th Amendment, which contains no less than ninety-three changes to articles and clauses of the Constitution. What can this mean? Was the original document not properly drafted? Did its words have different meanings for different institutions?
Removing or changing names or adding new clauses to the Constitution do not, of course, alter the basic nature of things. Erasing General Zia-ul Haq's name from the document is not likely to remove his legacy of intolerance, blood and death that haunts us to this day; nor will the name-change of the NWFP remove the anguish and sorrow suffered by its people as a result of his decision, motivated by the misconceived concept of "strategic depth," to become a party to the Afghan conflict.
Consequently, while the proposed 18th Amendment may on the surface appear a sincere attempt to correct key governance areas, such as economic balance among the federating units; civil-military power equilibrium; and parliament-judiciary relations, it may end up addressing none because the underlying motives could be suspect.
Touching briefly upon the first two, it is noted that of the twenty-four nations on the planet identified as federations, Pakistan is the country where one federating unit constitutes the majority of the population. This is the principal negative dynamic from which several nation-building and governance fault lines and unless parliament moves to create more provinces, changing their names or adjusting financial awards will only defer, not solve, the structural problems.
On the civil-military power balance, while Senators and MNAs, in self-praise mode, may attach whatever meaning they want to the words used in the 18th Amendment, they should not ignore the fact remains that for more than thirty out of the thirty-seven years of its life, the 1973 Constitution has seen a president with army support, not parliament, as the fulcrum of real power.
Parliament believes, incorrectly, that presidential power is made possible as a result of judicial sanction to military interventions and attempts to address the problem by ridiculing and scandalising the judiciary, including floating proposals that judges who validate such interventions should be culpable for high treason. Such approaches are highly irresponsible, placing on seventeen judges the onus of moral authority to prevent the unpreventable, when more than four hundred fifty elected representatives are reluctant to do the same. During 1997-99, the PML-N, with a two-thirds majority did not, or could not, undo the 8th Amendment, the prime bone of contention in civil-military relations; even the present Government and Parliament are unable to censure General Musharraf, let alone indict him, on any charge.
Parliament's defence mechanism is via proposed judicial commissions, which will make nominations; and a parliamentary oversight committee, which will approve and appoint judges from among these nominees. This is fraught with danger for two reasons.
First is the proposal to include representatives of the bar on the appointment commissions. History tells us it is wise to keep lawyers, as a professional body, away from the table of power - in both the French and Russian revolutions it was lawyers that turned justice into retribution, leading to the imposition of systems even more authoritarian than the ones that had been replaced.
Second is the proposed amendment allowing government officials, five years after their dismissal from service and others, a similar period after their convictions, to contest elections, giving aggrieved and biased persons the opportunity to sit on judicial commissions and decide who sits on the bench. Such a provision will provide elected officials even more power than does the NRO in degradation of public morality.
In theory, of course, one cannot argue with the concept of parliamentary oversight of and executive prerogative to make judicial appointments. This is because in modern governments, whether democratic or authoritarian, the political executive, with or without legislative and judicial consultation or approval, is the selecting and appointing authority, India's superior judiciary standing out as an exception that enjoys exclusivity in such matters.
In the context of Pakistan, however, parliament's relations with the judiciary relations are governed by emotion rather than objectivity. The PPP is mindful of the controversial death sentence handed out to its founder Chairman; so is the PML-N, whose founder President received an equally controversial life sentence for "hijacking." Both remain wary of the superior judiciary's proclivity to side with Army governments against civilian politicians, with Parliament's suspicions reinforced by the unbroken sequence of judicial sanction to military coups. Even the present activist Court declined to give a clear ruling against the NRO or election of the Chief of Army Staff as President, when presented with an opportunity in 2007.
But if Pakistan's judiciary in the past was unresponsive to democratic aspirations, its politicians and parliament have been even more so. It is all very well for them to cry foul and refer to jail time and victimisation when they are ousted, but, to quote Abraham Lincoln, "nearly all men can stand adversity; if you want to test a man's character, give him power."
Time and again, when in power, the political establishment has failed to deliver, lacking statesmanship when it was required and showing scant respect for the constitution. The PPP suspended basic freedoms within minutes of promulgation of the 1973 constitution and then set about attempting to make the judiciary its supplicant; the PML-N, for its part, maneuvered the tabling and passage of a constitutional amendment in a matter of hours, looking the other way when its party activists launched a physical attack on the Supreme Court. The reluctance of the incumbents to undo Musharraf's assault on the judiciary remains fresh in the memory.
Can we believe that these same parties are truly committed to the promotion of an independent judiciary, one that can hold them accountable while in office? Are the proposed amendments designed to promote good governance or to secure perpetual tenure for a political kleptocracy, by closing all legal exit routes for their ouster, irrespective of how they handle power?
Daily we are reminded that the on-going anarchy, misgovernance and abuse of power, nationally and provincially, must be tolerated for "protection of the system." But only an incurable optimist would be unable to see ulterior motives behind constitutional amendments that propose to remove the condition of compulsory elections within political parties, or the incumbent government's refusal to comply with court orders, even its oft-repeated view that "democracy is the best revenge." Against whom, one might ask - the judiciary, the military or the people?
Perhaps the stand-off is but grist for the media mill, a turf battle among the key stakeholders within Pakistan's power elite who have little connect in any case with the problems of the people. Fifty percent or more of the population remains untouched by the state justice system, relying on "panchayats" and "jirgas" for dispute resolution or simply submitting to authority exercised by the locally powerful; similarly, apart from soliciting votes to put themselves in power, politicians discourage the development of lower-tier participatory democracy, extinguishing with speed any initiatives taken in this regard.
Could it be that our national psyche has become muddled by absorbing selective aspects of judicial systems from the past? We may be subliminally recalling the Laws of Manu, according to which the King was extolled to use his "da.n.da"(sceptre) for providing justice, but forgetting these laws also stated that the higher one's station in life, the greater the penalty - "where another common man would be fined one kaarshaapana, the king shall be fined one thousand."
Are we wishing to revert to Islamic polity, in which the Emperor or Sultan was the Chief Qazi, appointing a Quazi-ul-Quazat to maintain the judicial system on his behalf and, during Mughal rule, every senior officer of the state was required also to be a member of the military, for reasons of administrative efficiency and political stability?
More recent and relevant, perhaps, is the Anglo-Saxon legal tradition transplanted into South Asia, the very first acts of the Supreme Court of Judicature, established in 1774, being to execute an Indian Maharajah who was a close ally of those in Council opposed to the Governor General; and next to jail the English editor of a newspaper critical of the same exalted personage. Since then, the superior courts have functioned to enforce justice with heavy bias towards State Power at the cost of the rights of the individual.
The problem with the ambitions of the 18th amendment is that real power continues to lie elsewhere. If Parliament wishes for political authority to gain supremacy over the authority of force, it will have to do more than re-interpret words and clauses. On-going attempts to prove its supremacy by confronting the superior judiciary will lead to nowhere, firstly because the courts are not its rivals for power; and secondly because the proposition that elected representatives can give their own interpretations to legal orders is nonsensical. Indeed, when this is done by those that are themselves accused of violating the law, it becomes dangerous for the nation.
It would be wise not to misread the intentions of our superior judiciary. Their focus on the NRO is neither selective nor a vendetta but an indication that parliamentary supremacy is best established through moral ascendancy gained by adhering to the authority of Law. Otherwise, Parliament, like Humpty Dumpty, will again be headed for a great fall.
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