The slippery slope

A Constitution’s breakdown is not a pretty sight


The Supreme Court presented an appearance of disarray that made its ability to adjudicate appear dubious. With that, the whole structure of the state became dubious.

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Perhaps one reason for the apparent disarray is the doctrine of the separation of powers. Every state has, and has had throughout history, three major components: the Executive. The Judiciary and the Legislature. The Legislature makes the laws, the Executive executes them (and sees that the citizenry obeys them) and the Judiciary adjudicates any disputes, including about what the law actually is.

In history, the norm has been for one person to enjoy the powers of all three. Kings did, for example, but English Kings introduced getting agreement from parliaments. Ultimately, parliaments absorbed the King’s powers, and a Cabinet and Prime Minister emerged, enjoying the Executive power. They had to be able to make laws, so the person who could legislate, in other words commanded a majority in the Commons, was given the Executive power. The Judiciary remained relatively independent, but the head of the judiciary, the Lord Chancellor, was a member of the Cabinet.

When the USA separated, it carried out a number of innovations. One was to have an elected King, or President. Another was to establish a separation of powers, so that you had to make a choice. Members of the legislature, if given executive power by induction in the Cabinet, had to give up their legislative office. And there was no question of the head of the judiciary sitting in Cabinet.

The course of constitutional development of the UK and the USA followed their respective paths, and the prime ministerial and presidential systems respectively evolved. When British colonies became independent, a new problem arose: they had prime ministerial systems, and written constitutions. Now written constitutions meant that there had to be a constitutional court exercising the power of judicial review, basically the power to strike down any law passed by the legislature, because it contradicted the Constitution. The Indian Supreme Court has gone to the extent of announcing a ‘basic structure’ doctrine, which states that the legislature cannot so amend the Constitution as to make it deviate from the basic principles. Those principles, that structure, is not defined except by the Court, and thus is problematic.

The Prime Minister’s control over the legislature is what gives him the power over the Judiciary, for it is controlled by the Parliamentary Commission which allows him to recruit the Judiciary’s members. However, he has no judicial powers himself, as did Kings. The separation of the three branches was expressed by the constitutional restriction on legislators discussing the conduct of the superior courts or their judges.

Now that principle seems to have been thrown out the window, and the conduct of the Supreme Court, is freely criticised in Parliament. There can be little respect left for the judiciary when the Prime Minister, on the floor of the House, is so scathing in his criticism of the Supreme Court as was Mian Shehbaz Sharif.

The problem seems to be that a new constitutional arrangement is required, but the normal means of making it are also not available. The system is clearly dysfunctional, and the only solutions offered are more of the same, by the PDM, or elections, by the PTI. Both seem to be showing that they do not have the solution. Nor do the self-appointed Wise Ones, whether in black or khaki. The only paths left are increasingly desperate.

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True, the Executive derived from the Legislature has not fared better in recent times. Politicians have been painted as corrupt, thieves and dacoits. Another difficulty in Pakistan has been the power of a part of the Executive, the military. Not only has it carried out four takeovers, but it has always depicted politicians as corrupt and devoted to looting the public exchequer. It is possible to see something of the envy of the salaryman in them. It is significant that Imran Khan used this particular trope to great effect in his campaigns. It is worth noting that corruption allegations reached Imran just as they reached other politicians, and as they reached the four military regimes.

Indeed, Imran has now made it part of his post-ouster campaign that even when not ruling, the military is corrupt. His argument seems to be that he was ousted so that senior members of the military could indulge in corruption, which he would not tolerate. Thus it was that the only part of the Executive that still had some respect among the public, lost that. Though the military has not become target for public contempt, the respect shown to its members is more in the nature of fawning on the powerful, rather than respect for the gallant defenders of the country, which is what they have been hitherto used to.

It is worth noting that military men, judges and politicians may no longer enjoy respect among the public, but there has been no failure of deference. Now there are whispers when they have left the room. An exception must be made of PTI supporters who shouted slogans at ministers in public places. It would be a frightening sign of disintegration if such public displays of rudeness started to target either judges or military men. One is reminded of how Vietnam-War-era US soldiers would not wear uniforms away from the barracks, a few going as far as to wear wigs which would hide their haircuts, which were unmistakable in that longer-haired era.

Perhaps the most damaging to the polity is the spectacle the Supreme Court presents, not just of some judges favouring one political party, but of the disarray in the courts. The whole country goes to the courts for a decision on an issue; now they are confronted with the sight of a Supreme Court engaging in very public wrangles about what that decision actually was.

Though there are calls for the resignation of the Chief Justice, their assumption seems flawed in theory, if not in practice. A CJP should not take the assumption that he is head of the judiciary seriously. As one judge of the Supreme Court, he should not view being in the minority on a decision as some sort of insult. Most importantly, he must not be seen as pursuing a political agenda.

The issue of Imran’s arrest showed this. A court had ordered his arrest. The Executive had tried to execute this, but could not. The superior judiciary granted Imran bail. He was thus shown as somehow superior to the state.

The government seems to be getting in on the act. Getting resolutions passed forbidding it from obeying the Court’s order, and holding National Security Committee meetings appear meant to make it impossible for the Supreme Court to hold anyone in contempt. There is still the touching faith the Court wishes to appear fair.

With the Executive dancing to the wishes of a part of itself, the judiciary seemingly not able to take a decision, and a legislature woefully incomplete (the largest party is not in the National Assembly, two of four provincial legislatures stand dissolved), the Constitution itself appears no longer viable. A Constitution, after all, is merely a description of how the Executive, Legislature and Judiciary interact. If they are not functional, the document must be reviewed.

The country is used to extra-constitutional means, in the shape of military takeovers. The first two coups abrogated the constitutions. In 1958, the constitution had not been fully operationalised. In 1971, the abrogation was of a handed-down military-drafted constitution.

The 1973 Constitution seems to have been more robust, or rather to meet the needs of the coupmakers, as it was not abrogated, but twice overthrown {‘held in abeyance’ is the phrase used) and then revived.

The problem seems to be that a new constitutional arrangement is required, but the normal means of making them are also not available. The system is clearly dysfunctional, and the only solutions offered is more of the same, by the PDM, or elections, by the PTI. Both seem to be showing that they do not have the solution. Nor do the self-appointed Wise Ones, whether in black or khaki. The only paths left are increasingly desperate.


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