Constitutional capture

The judiciary has the capacity and the duty to come forward with a reforms agenda that enables our state institutions to operate in accordance with Constitution’s vision for them  

Constitutional capture


The Constitution of Pakistan is a living and dynamic document based on sacred and internationally accepted democratic ideals designed to promote indiscriminate well-being of citizens, orderly conduct of the state, people’s participation at all levels of governance and equitable distribution of resources.

Constitutional capture that can reverse these objectives remains the worst nightmare of those seeking constitution’s supremacy. The landmark Panama Papers verdict in general and the minority view on it in particular aptly highlights this constitutional capture by a family in the most bizarre sense of the term. The practical manifestation of the famous saying, “all power corrupts and absolute power corrupts absolutely”, has been articulately documented in the judgement by Honourable Justice Asif Saeed Khosa.

It all began when a scion of a trading family was inducted as a nominee Punjab Minister by a military regime in 1982. Political power was ruthlessly employed to gain control of state institutions. Huge loans were obtained from nationalised banks setting up industry after industry. Heads of key institutions were appointed in defiance of merit and based entirely on personal loyalty. All dirty tricks were set loose: issuance of time-bound favourable SROs to gain quick trading dividends; subsidies to boost targeted businesses; evasion of taxes; prevention, manipulation or curbs on hostile legal actions and cases; bestowing of state resources in the shape of plots, permits and licenses to win over political adversaries and promote friends; receiving commissions and kick-backs on mega-projects; purchase of real estate and trading in stock exchange through inside privileged information; and money laundering in and out of the country.

Equality before the law and indiscrimination and enforcement of fundamental rights were effectively made selective. Mighty and powerful were exempted. Party tickets were awarded purely on personal loyalty. If elected, one must vote, speak, and act as per party head’s directions. Otherwise, you stand disqualified. Any independent rational voice and sagacity was disallowed. Either toe the line or leave the system. Bureaucracy was personalised. Those who worked for institutions, law and the state were parked to sideline assignments and made to face inquiries, wait for promotions and get frequent abrupt transfers and suspensions.

The option of forced military interventions to fix our institutional problems has not yielded any positive results

PPP and to a lesser extent smaller parties in the country’s politics have ascribed to similar norms. Consequently, the country has been left with a bleeding economy, shattered institutions, personalised bureaucracy, immense poverty, rising inequality, worse exploitation, public mistrust and an insensitive nation without hope and resilience. The mood is that everything is fixed, pre-settled, for sale and compromised. Those who remain committed to honesty, morality, rule of law, fair practices, and halal living in all facets of life are either wiped out or cut to size. The old political culture of patronage and personalised service to friends coupled with revenge and punishment for foes is replaced with new paradigm: spend money to win tickets and elections and then use political power to plunder and accumulate money. This vicious circle continues to dominate with ferocious manifestations.

The vital question remains that if a state is trapped in a constitutional capture of this kind, how can it be set free? How can a political system fairly and equally open up to all citizens of the state to attract best leadership at all levels of electorate system? How can a policy be made in the best public interest free from extraneous and corrupt considerations? How can development agenda be set and achieved in a transparent and efficacious manner? How can institutions start realising objectives of their creation? How can the democratic ideals and spirit of the constitution be rightfully enforced?

The first option is forced interventions through the military. The experiment did not yield any positive result. The second option is to wait for divine intervention — the natural path of rise and fall of nations, individuals and families. This does not require any action on our part. The third option is judicial intervention for affirmative action. This option has never been employed in a comprehensive and over-arching manner.

The judiciary does not have a glorious history. With isolated cases of triumph and glory, the overall public trust in judiciary and the provision of justice have always remained questionable. Notwithstanding, the judiciary has the capacity, duty and responsibility to come forward with a comprehensive plan to direct, monitor and oversee political and institutional reforms aimed at cleansing political and state institutions — as ordained by the Constitution. To do so, it would require public support. PTI chief Imran Khan has been credited for having remained un-purchasable and steadfast in his struggle to break this constitutional capture. More factions of civil society should join.

The Panama Papers verdict may prove to be the start of the greater role that the Apex court may choose to play. This role if employed rapidly and effectively can go a long way to demolish constitutional and institutional capture that has stagnated Pakistan. The direction of the state must be set right to allow Pakistan to realise its full potential. The Supreme Court has taken upon itself the duty to take the verdict to a logical end. It must act swiftly to break the shackles of constitutional capture and it should not allow its activism to get lost in a blind alley. Public pressure coupled with judicial activism is the only way forward.

 

 

The writer is a graduate of Columbia University Law School, former MPA Punjab Assembly and a lawyer of the Supreme Court of Pakistan. Comments can be sent to abid@abidchattha.com

 

 

Published in Daily Times, June 20th, 2017.