History is punctuated with critical decisions, decisions that engage one’s fate and the fate of others, decisions that people make in a mist of darkness, the darkness of their own motivations, the darkness of those who confront and challenge them, and the darkness of what the future has in store. - Ruling Oneself Out: A Theory of Collective Abdications - Ivan Ermakoff
A major problem in analysing ongoing events is the inability by most of us to overcome our predilections and disinclinations.
An example should help clarify the point. Since the unfortunate events of May 9, when a mob vandalised properties belonging to the army and the Ministry of Defence, there has been a move by the government (read: the army) to constitute military courts to try the accused civilians.
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Supporters of the current coalition government, the Pakistan Democratic Movement (PDM), make the argument that civilians were also tried in military courts during Imran Khan’s tenure as Prime Minister. While this is a fact, the argument is nonetheless patently nonsensical, because it deliberately avoids tackling the pressing issue of whether it is apposite to try civilians in military courts which operate opaquely. That question, as should be obvious, is to be posited and answered regardless of who is in power. The issue assumes greater urgency in terms of a principle when it is evident even to the blind that the government and the army are using every trick in the book to politically neuter a civilian leader and his party.
The point is not who the civilian leader is or which party is being knocked out. It’s about who wields power and whether we can describe ourselves as a democracy in the absence of civilian control and accountability. In our divisive, partisan tug-of-war, the real issue is lost: where does power reside and who benefits from it.
Corollary: the law becomes putty in the hands of those who either use it to suit their interests or disregard it completely when it appears to stand in the way of what they want. To this end, of course, they must find collaborators among the civilians. That’s easy. Dangle carrots and if carrots do not work, use the stick. This is Authoritarianism 101.
The point is not who the civilian leader is or which party is being knocked out. It’s about who wields power and whether we can describe ourselves as a democracy in the absence of civilian control and accountability. In our divisive, partisan tug-of-war, the real issue is lost: where does power reside and who benefits from it
My granddaughter is at an age where she makes up stories while playing with her toys. She calls it doing ‘pretend things’ (her coinage). It’s a wonderful exercise in the application of a child’s imagination and shows how stories are an essential part of individual and collective human life. Not so with the pretend things we are doing and which are dragging us into what Ermakoff called “the darkness of what the future has in store.”
For instance, we pretend that we have a Constitution, even though on more than once occasion we have either been without one or have remained suspended in a post-constitutional phase like the present one. We also pretend that we are a democracy with all its formal trappings of an executive, a legislature and a judiciary. The reality is that we either legislate through ordinances or bulldoze legislation through the two houses in violation of the spirit of debate and discussion. We also have a three-tiered court system. In truth, for the most part and occasional obiter dicta by judges notwithstanding, power has historically managed to bend the law to its will.
The point about the courts is the most disconcerting. Courts are the last resort for righting an arbitrary wrong, especially by the state. When the courts cannot do that or are coerced into denying justice to citizens, the individual’s status is degraded from that of a citizen with rights and obligations to a serf who must accept servility.
The government, backed by the army, has of course been very enthusiastic about delaying elections, degrading the PTI, putting Khan in the slammer and trying PTI workers in military courts
Take the petitions before the Supreme Court challenging the trial of civilians in military courts. One would assume for good reasons that the apex court would determine the issue as a priority matter not only for legal-constitutional reasons, but also for politico-historical ones. But the court has, for the most part, danced around the problem and it began with two honourable judges, one of them slated to be the next Chief Justice. Justice Faez Isa appeared to find the technical issue of bench formation more important than the substance of what was before the court. I would leave the discussion of those technicalities to legal minds, but this was a repeat of an earlier schism in the Supreme Court, which pushed to the back-burner the substantive issue of holding elections in 90 days, as stipulated by the Constitution.
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Barrister Aitzaz Ahsan rightly called this a household dispute. I’ll not attempt to conjecture about why procedural matters, under normal circumstances perhaps of significance, keep popping up and continue to divert attention from the substantive problems before the SC. But at the very least they have resulted in two regressive developments: other institutions (notably the executive and the legislature) have patronisingly told the Supreme Court that if the Court cannot keep its own house in order, it should refrain from telling the government what to do; two, it has weakened the superior judiciary’s hand by showing it up as a divided and divisive house.
The government, backed by the army, has of course been very enthusiastic about delaying elections, degrading the PTI, putting Khan in the slammer and trying PTI workers in military courts. It reminds one of what Socrates said to Crito when Crito went to see him in prison to persuade Socrates to escape: “My dear Crito, your eagerness would be worth a lot if it were in pursuit of something righteous, but the more it is not, the more difficult it is to deal with.” Of course, there’s no one and nothing in this government that could remotely be as righteous as Crito was.
Then we have the conviction of Khan. I will leave the details of that verdict to legal minds but it is important to note that any conviction where an accused is not allowed to present their defence makes a mockery of the law. To reiterate my original point, one can either take the partisan view or focus on the principle and oppose such sham trials regardless of who is in the dock. Additionally, perhaps the irony of orchestrating the arrest of a former Prime Minister on August 5 was lost on the government and its backers.
Every one of these acts singly is enough to kill democracy. In tandem, they can kill and inter it many times over
The government has also managed to push through a bill to amend the Official Secrets Act, 1923. It was passed by the Senate on Sunday with some token changes. A full discussion of this draconian law requires a longer treatment but for our present purpose it is enough to say that we would, including those who have passed it, rue the day we had willingly tied our hands and presented ourselves to the state and its intelligence agencies.
Here’s then the gist.
Our pretend games notwithstanding, if we claim to be a democracy, even a flawed one, then I am Pope. By most evidence, judicial independence has been eroded; we have legislated repressive laws striking at various freedoms guaranteed in the Constitution; the state increasingly resorts to extrajudicial acts; the media are controlled; laws are selectively enforced; polls are manipulated through system rigging; security forces/intel agencies are used to keep “citizens” in line; dissent is silenced; the state uses patronage, often corruptive. Every one of these acts singly is enough to kill democracy. In tandem, they can kill and inter it many times over.
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Finally, a word about what procedural due process means. There’s a consensus that it “refers to the constitutional requirement that when the…government acts in such a way that denies a citizen of a life, liberty, or property interest, the person must be given notice, the opportunity to be heard [audi alteram partem], and a decision by a neutral decision-maker."
None of that is happening in any meaningful way in current trials.
As Joseph Schumpeter wrote, “Nothing is so treacherous as the obvious.”