Restricting the establishment within its constitutionally mandated lane cannot be achieved until politicians restrict themselves to their own constitutional domain. While the constitution envisages a specified role for state institutions, it also limits the role of politicians and their politicking to legislative bodies and their respective cabinets. In effect, the constitution envisages all other state institutions as apolitical. What is camouflaged under the narrative of politicians colluding with the establishment is their original sin, i.e., their continued effort to politicize state institutions.
At Independence the institutions inherited from the Raj were obsequious to civilian supremacy but the pavement markings on their constitutional lanes were soon blurred by would-be Caesars of Pakistan. It was Prime Minister Khawaja Nazimuddin who in a moment of weakness appointed Chaudhry Muhammad Ali, a serving bureaucrat as Finance Minister in his cabinet – the latter went on to be selected as Prime Minister. Not only did this bring the mandarins into the political domain, it also started the monopolization of policymaking by the civil service, whose administrative role is primarily limited to implementing policy. The era of the mandarins where every bureaucrat wished to clothe himself with the powers of a cabinet minister culminated in the martial law of first President of Pakistan, Iskander Mirza, metastasizing into a protracted Ayub rule. After a lifetime in the barracks, the Ayub regime had a superfluous understanding of issues facing the country. This led to an over reliance on the civil service in policymaking - whose expertise are largely in implementing policy.
While the politicians brought the civil servants into the political lane, it was military rule itself that cemented their position. Up until the ascendency of Zulfikar Ali Bhutto the entry of civil servants into the political domain was a one-way lane with the rank and file of the civil service being generally apolitical. Bhutto brought with him his wrath against the service; deprived of its constitutional protection, the service was demonized nationally. Handing out government jobs as patronage became a substitute for development and investment in human capital. While the quota system further supplemented political interference and appointments in the bureaucracy, this ensured the demise of merit in the service. Taking Bhutto’s cue, General Zia’s junta instituted a ten percent quota for military personnel in the service, adding another feeder lane into the already politicized civil service.
The impact of this political drag racing is that the civil service has become an equal player in the political power dynamics. For the political parties it is akin to playing a match against a civil service team – half of whose athletes have been bought out by the politicians – but the latter can call upon the umpire (no subtext needed) to win.
The judiciary is another pillar of state meant to be free of politicking. Simultaneously, the weakest yet a powerful institution in any democracy, the courts are unique. At the gestation of the American Constitution, the Federalist Papers described the courts as “incontestably” the “weakest of the three departments of power”. Lacking influence over the “sword or the purse” – controlled by the executive and the legislature respectively - it “must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” However, when all arms of the state are born from law – the constitution – the institution “whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void” – the judiciary – can instead of being “overpowered, awed, or influenced by its co-ordinate branches” can overpower the latter provided there is rule of law.
The past decisions of the judiciary are plausibly criticized for derailing the rule of law. However, it is pertinent to remember that it was the benevolent despotic desires of political leaders that first brought political issues to the judicial lane, which yielded some infamous decisions. The ‘doctrine of necessity’ was the product of one such decision delivered by Chief Justice Muhammad Munir in the Maulvi Tameezuddin Khan case in 1954. The indefensible judicial murder of Bhutto was not possible without the political cover given by the leaders of the then opposition parties’ electoral alliance - Pakistan National Alliance. At the demise of the second Sharif government - his supporters having stormed the Supreme Court during his tenure - the former premier and his supporters still felt let down by the judiciary for legitimizing a coup against him.
An issue that receives far less attention is the politicization of the bar associations in the country. Elected officials of the bar are often senior members of political parties. The bar councils and associations wield considerable influence over the legal system. The Justice Faez Isa case is a case in point. It is therefore needless to say that the full impact this may or may not have cannot be discussed without inviting legal or legal practitioners reprisals from the courts or the bar association respectively. The point being emphasized is that whenever political obstacles will be placed in the judicial lane, the military convoy will offer its heavy cargo to chart an alternative route for a toll.
The purpose is not to justify the establishment’s extra constitutional drag racing; it is to explain how the politicization of state institutions draws them into the political power dynamics, which results in them eventually lining behind the establishment – the only apolitical institution left in the country. This allows the establishment to legitimatize its extra constitutional off-roading. At a time when society and state are increasingly politicized and divided along political lines, it is important to take heed and understand where they could eventually line up if this process is not halted and reversed.
(The writer is a lawyer by profession. The views expressed in this article are not necessarily those of the newspaper)
Copyright Business Recorder, 2021
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