Daily Times

State systems under evolution or neglect, in both cases, have to stagger through a period of turbulence, dysfunction and friction, albeit at the cost of the plight of the ordinary citizen, efficiency and prompt delivery of services. This hodgepodge of state disjointedness and rising popular disappointment often leads to an environment of general anarchy. Closely knit institutions acquire unusual arbitrary powers, which generate corresponding inaction and insensitivity in lesser institutions of the state. This insensitivity or inaction is both the result of an absence of a sense of duty and resentment at loss of turf. A single or a combination of state institutions gather power and significance far beyond what the normal arrangement and practice of state power provides. In other words, they assume ultra-constitutional powers, which is where the major root of state malfunction lies.

This extraordinary state of affairs could be by design if a particular institution exerts influence through organisation and coercive power, and is wilfully undermining state authority. That is arbitrariness of the worst kind and can bring about an internal collapse like what happened in Somalia, Mali, Egypt and Libya. In Pakistan, we have had a taste of this bitter brew four times and survived after being badly mauled, thanks to the collective resilience of our people.

Acquiring predominant power by default is much more insidious and difficult to contain as it tends to seep in quite deeply. We have experienced this invasive phenomenon on three different counts: the militant mullah, the pushy press and the hyperactive judiciary, in that order of occurrence. Once again, we as people and the state have taken staggering body blows.

The mullahs’ militant hordes ravaged the entire national landscape. Whatever was left began to be painted indiscriminately black by media and whipped crimson by an overcharged judiciary, which had received blows of its own and recovered with a biting sense of worth against the system or what appeared to represent the system. Anybody and everybody who matters is being harangued regardless of his or her right to be heard and suitability of the forum. This razor sharp activism has other damaging effects. To know them one has to be able to understand that our society believes very strongly in optics and popular perceptions since ages.

Emperor Jehangir’s famous iron chain to be pulled by a petitioner to rouse the emperor could not have sufficed for millions of those wronged in his vast empire. It was basically meant for popular perception that he could be reached by any subject who felt he had been wronged. Caliph Omar’s fabled arrival at Jerusalem to accept their surrender, walking his camel while his servant was seated atop was not to set an example of that sort. It was more to instil an optic of equality at the time when a great victory was won. Sultan Sarang refused to revoke his allegiance to the defeated and banished Mughal Emperor Humayun, against the might of victorious Sher Shah Suri. He created a superlative perception of loyalty in adversity but paid for it with his life. Why would Rajputs of ancient Rajputana dye their clothes yellow (basanti) and fight the enemy to the last? For the optics of do or die. This then is the value and place of optics and popular perception in our psyche.

How does the Supreme Court (SC) expect to command popular respect if a sitting prime minister (PM) mocks its decisions in public rallies followed by on the floor of parliament, and his law minister ridicules them in a theatrical manner? Then the federal government goes on to nearly ignore verdict after verdict issued by the SC. The result had been a grievous dent in the prestige of the SC and a massive loss of popular trust in the seriousness of the executive. They struck back playing very close to the boundary line. The PM was convicted, dismantled and debarred from electoral office. Next, his equally unworthy successor was duly indicted and arrest warrants issued at a critical moment. Just how would a future PM reconfigure the authority of his office? Similarly positions of ministers, federal secretaries, IGs, chairmen of autonomous bodies, armed forces chiefs, intelligence agencies and what not have been badly singed, although many deservedly. Who is going to conduct the business of state for the benefit of the people in a tentative environment like this?

This is a raucous ring of kick-boxers where the common citizen has suffered the most, receiving crippling blows from both. Astronomical cost of living, maddening insecurity, shrinking jobs and mammoth shortages of gas and electricity are atrocious. There are large masses of dejected men and women who mill around in offices and courts of all descriptions chasing the mirage of justice, hopelessly following millions of pending cases. That indicates a highly strained bureaucratic and legal system on the verge of collapse. This is potentially a ticking time bomb, which if it explodes can destroy society, hobbled officialdom, incompetence-concealing decorum and remote islands of privilege and precedence.

Meanwhile, the focus of the higher judicial system seems to be shifting from immediate material to remote conceptual. From benevolent relief to the philosophic haze, it appears to have expanded to murky patches of foreign policy, military strategy and lately to misty divine prerogatives, with a discreet eye on popular appeal and institutional infallibility. This kind of in-growing trend should be fairly novel and unusual in this traditionally very circumspect neck of the woods. A provincial High Court seems to be leading this newer dispensation. A few snippets, as reported in the English press: “Rejecting General (Retd) Pervez Musharraf’s appeal it observed, ‘We are of the considered view that a person (Musharraf) who had got not a little respect from the whole judiciary and just now how he can pass through small campus of Articles 62 and 63…’” An expression befitting a satirist than a jurist, thinly concealed institutional indignation notwithstanding.

On May 9, it opted to reorient part of the country’s foreign and military policy on appeals against drone strikes. The Court directed the Foreign Office to move a resolution against the US in the UN and if the US fails to comply, sever diplomatic relations with that country and block NATO supplies. It ordered the military to shoot down the intruding drones and instructed the government to initiate war crimes proceedings against the US and seek compensation for the victims on prevalent rates. A good part of the directives lies outside the compass of the judicial high purview. It was also not clear who would shoulder the responsibility for the consequences should the orders be carried out.

The latest is the more worthy of note. New federal and provincial governments are going to be in place in a few days, therefore it was perhaps considered time to issue a note of caution. Addressing judicial officers it was declared, “On May 11, the people used their vote as revenge; this will happen again if the new government did not work for them. The new government should not only focus on ending the miseries of the common man but also focus on education and provision of justice.” A perfectly sane advice, however coming from an unlikely oracle.

Provision of justice is the key to harmony and peace in society. In our country a law-abiding citizen is condemned to suffer the bitter labours of his conscientiousness when pitched against crooks. Millions upon miserable millions are running from pillar to post to retrieve through law what is rightfully theirs. The lower courts are overflowing with petitioners like maggots oozing out of a carcass, where ridiculously petty matters take ages to decide. Sensitivity, compassion and empathy are hardly ever visible during the proceedings. A self-perpetuating judicial system becomes partisan, vastly diluting its ability to deliver, thus placing petitioners at a dire disadvantage. It is understood that the fundamental intent of the law, and therefore its courts, cannot be to the disadvantage of the disconnected, defenceless and the inarticulate.

One is reminded of a great essay by Nancy Gibbs (“Zero Tolerance, Zero Sense”, The Times, March 28, 2011) where she makes the following brilliant observation: “When authorities confuse intent and accident, when rules are seen as more sacred than sense, when a contrite first time offender is treated no differently from a serial menace, we teach our children that authority is deaf and dumb, that there is no judgement in justice.”

The writer is a retired brigadier of the Pakistan army and can be reached at clay.potter@hotmail.com