Daily Times

Can a government be seen governing when in its first three years two finance ministers resign, two information ministers step down and one State Bank chief calls it a day? One does not need to be a political scientist to judge the level of governance when a government makes its own Secretary Establishment an officer on special duty (OSD) after he fulfils his constitutional duty of implementing the honourable Supreme Court’s orders. Not very long ago we saw legal officers of the government playing a game of musical chairs as well. Governance in the fields of foreign policy and defence matters had already been outsourced to the military establishment, while the government has been acting as an extended arm of ISPR. In a country where there is no dearth of talented and hardworking graduates from illustrious Business Schools nightclub managers are made heads of national institutions. Governance in the field of civil administration, where the government has some say, has become an endangered species and if the present trend continues it will soon be on the verge of extinction.

General perceptions are generated by recurrent experiences over a long period of time. They are, therefore, often not untrue. The perceptions of commoners are like a sorcerer’s crystal ball through which they can clearly see what is going to happen in the future on the basis of what had always happened in the past. One such commonly held perception is that in Pakistan ‘might is right’ is the rule as there is no rule of law. A long time ago Plato had proposed his ideal sate ruled by a guardian class. He argued that the guardian class should be unencumbered by law. Plato would have been very happy in Pakistan as we are ruled by such a class. A member of this class can get away with any crime from murder to multi-billion rupees embezzlement. If arrested, he gets VIP treatment in both the police station and the jail. Most often he is suddenly diagnosed with a heart ailment and gets shifted to an air-conditioned room of a hospital. Meanwhile, all witnesses are either bought off or coerced into cooperation to facilitate an early acquittal of his majesty. They are men like gods who are not subject to laws of earthlings like us.

The movement for the restoration of the judiciary in Pakistan generated a new perception. A perception of a new Pakistan! A Pakistan that could be rebuilt on the golden principle of the rule of law. Mr Zardari’s government tried in vain to kill this perception in the bud with the help of Dogar bulldozer. A man in the street is however not convinced if the rule of law will ever blossom in the traditional Pakistan. To lend weight to their fears a few instances have arisen where old perceptions are all set to devour the new perception. A commoner, therefore, whispers that nothing will happen to Moonis Elahi in the end. Makhdoom Amin, like the British monarch, can do no wrong, and hence will always be an honourable ‘Makhdoom’ even if a few billions inadvertently found their way into his bank account. Saleem Shahzad has died in vain and in the end it will somehow be proved that he either committed suicide or that he was killed by a small-time highway robber.

When Julius Caesar expressed his reluctance in attending the Senate session on Ides of March, he was asked to cite adequate reasons for that. In the absence of a valid reason, even Caesar could not use his discretion as he deemed fit. The PPP government’s resolve of using its executive powers in a discretionary manner is repulsive as mischief and mala fide are noticeably floating on the surface. The doctrine of ‘mufahimat’ (reconciliation) means scratching each other’s back, as is the norm according to a layman’s perception. Investigating officers of scandals are therefore not just individuals. They have assumed symbolic importance in this defining battle between the forces of old and new Pakistan. If the investigating officers play to the official tunes, the old Pakistan will remain invincible and no one will ever challenge the divine rule of ‘king is law’.

According to Dicey, a respected constitutional law author, sovereignty of parliament only exists in Britain as there is no distinction between ordinary or constitutional law in Britain. But in federations or states created on the basis of a constitution, power is divided among various organs of the state. Therefore, it is the constitution that is supreme. According to generally accepted maxims of modern constitutional law, the Supreme Court is the guardian of the constitution and in cases of conflict it has the final authority of determining what the correct law is. Does it mean that both the executive and parliament are powerless and play second fiddle to the Supreme Court? The executive is of course subordinate to the courts. However, it can use its control of parliament to deal with any order of the Supreme Court if it does not like it. It can lead parliament in passing an overriding statute. But if it does not take that route, it has no other option but to implement all orders issued by the court. Not doing so is an act of treason, as the whole edifice of the constitution falls apart.

Some pro-government analysts at times seek asylum in the doctrine of separation of powers. They contend that courts cannot interfere in the domain of the executive. Nothing is further from truth. All superior courts of the world regularly consider cases of judicial review whereby they scrutinise executive actions and declare them null and void, if found contrary to law, as interpreted by the courts. In India, courts spearheaded and oversaw demolition of illegal encroachments in the recent past and of late have been giving tough time to the government in corruption cases. The steadfastness of the Supreme Court of Pakistan in cases of mega scandals is therefore a cause of hope in an otherwise failing state of Pakistan.

Zafar Qureshi and Hussain Asghar are just civil servants like thousands of others. But officers like them today will determine whether a new Pakistan will emerge from the debris of old Pakistan. If we fail them, or they fail us, we strangulate the budding hopes of a new Pakistan. If the swamp of corruption and bad governance is not dried out, our homes will remain infested with stinging mosquitoes of terrorism and lawlessness.

The writer teaches in the UK and is the founding member of Rationalist Society of Pakistan. He can be reached at hashah9@yahoo.com