The ‘System’

Over the past week, the hypocrisy of Pakistan’s broken democratic ‘system’ has become visible for all and sundry.

On Tuesday, March 3rd, Yousaf Raza Gilani won his seat for the Senate, through a majority of the votes casted in the National Assembly. In effect, these votes had been cast (through a secret ballot) against the Prime Minister and his nominee, Mr. Hafeez Sheikh. Just three days later, the very same members of the National Assembly (in an open ballot) cast majority of the votes in favor of the Prime Minister – expressing ‘confidence’ in his ability to lead the Parliament and the country.

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And yet, despite this abhorrent and abject hypocrisy, members of the Parliament, like Brutus, remain honorable men.

This is not a moment to celebrate, for either Yousaf Raza Gillani or Imran Khan. One (allegedly) ‘bought’ votes to get elected; while the other has the ‘confidence’ of those who were willing to sell their votes just three days back. And yet, Brutus is an honorable man!

In the aftermath of these developments, much has been said about the constitutional and legal construct of our (democratic) electoral ‘system’. The ability of our constitutional fabric, to deliver on its democratic promise, has been questioned. At the core of this debate is one elemental question: is the ‘system’ working, or do we need to rethink the fundamentals of our constitutional democracy?

To answer this question, let us start with a humble attempt to articulate the objective of a ‘constitutional democracy’. While legal philosophers and political thinkers, all through history, have differed in stipulating the mechanics of a constitutional framework, there has existed a broad consensus about what a constitutional democratic ‘system’ should do: ensure that the collective will of the people, concerning issues that relate to welfare of the populi, finds expression in the corridors of political, legal, and administrative power.

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As a natural corollary to this objective, functional constitutional democracies must develop legal safeguards that compel elected representatives to focus on public welfare; require the appointed judiciary to punish the guilty and compensate the innocent; and mandate executive authority to deliver services in a non-discriminatory manner, without fear or favor.

As hard as it may be to accept, the truth is that this ‘system’ is not working. We can make excuses for it.

Saad Rasool LL.M. in Constitutional Law

Let us try and evaluate our democratic ‘system’, established under the Islamic Republic of Pakistan, 1973, on the touchstone of these overarching principles.

Starting with the legislature: let us honestly ask ourselves, divorced of all partisan biases, whether our ‘system’ elects people who truly represent the public will, and does it then compel these individuals to work (legislate) in public interest? To this end, does our electoral system provide a level playing field, designed to elect the most qualified and deserving candidate from each constituency? Or, instead, has it become a process through which the rich and powerful perpetuate their worldly fiefdoms? Why do the same individuals – despite an insurmountable corpus of corruption charges and decades of public mismanagement – continue to be elected from their respective constituencies, without any fresh leadership coming to the fro? Why are political constituencies, much like other material things, passed-on as a hereditary title amongst family members? Why does our ‘system’ not guard against such abuses, through institutional checks and balances?

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The answer to all these questions is simple: success, in our electoral ‘system’, is a function of the candidate’s financial and physical muscle in the constituency. In our ‘system’, there is no way for Allah Ditta and his family to contest against the financial power (and armed cohorts) of the Waderas’ of Sindh, Sardars of Balochistan, Chaudharys of Punjab and the Maliks of Khyber Pakhtunkhwa. Not only can such (powerful) individuals browbeat any possible competitor in their respective constituencies, they can simply outspend them during the electoral process. And despite strict campaign finance restrictions, under Section 132 of the Elections Act, 2017 (which, for example, stipulate that no more than Rupees 1.5 Million will be spent by a candidate in Senate Elections), our ‘system’ has never (really, never!) enforced any such legal requirement on candidates for elected office.

Human history bears witness to the fact that any time people have taken it upon themselves to change the ‘system’, such change has almost always been accompanied by heads on pitchforks, hung at the city gates.

Saad Rasool LL.M. in Constitutional Law

In terms of the executive, can anyone argue (with a straight face) that the service-delivery mechanism of our State machinery functions without fear or favor? Does the thaana, despite all provisions of the relevant police laws, treat Allah Ditta at par with the local political leader? Does the Patwaar? Does the DHQ hospital? Or the District Commissioner? Is the public education ‘system’ really designed to help Allah Ditta’s kids compete with children from elite private schools in the dynamic modern world? Does the ‘system’ really do all it can for the street children? Or the homeless? Or the thousands of women and children who are sexually assaulted each year? Does our ‘system’ care about the 200 children in Thar, who died from lack of food and water last year? Does it provide efficacious institutional mechanisms to protect the Hazaras of Quetta, or the Christians of Lahore?

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The most deplorable manifestation of this ‘system’ is perhaps best glimpsed in our project for justice. Respectfully, that is. Of course there are good judges, and valuable jurisprudence. But, on the whole, is the ‘system’ really working to provide justice to Allah Ditta? Or is it, instead, designed in a manner that tips the scale in favor of the powerful and wealthy? Can we say that the judicial ‘system’ is working, as it should, when Allah Ditta languishes in jail for decades, while Hamza Shehbaz’s bail is heard over the weekend? Have the courts asked the State to provide ‘guarantee’ for the life of any incarcerated patient, other than Nawaz Sharif? Is the ‘system’ working when Asif Zardari could not be charge-sheeted till November 2020, in a case that was registered back in 1994? Can we say that the ‘system’ provides justice when Majeed Achakzai (an MPA from Balochistan) has been acquitted after running over a traffic warden in Quetta in broad daylight? Oh, by the way, despite the CCTV footage showing how he killed the traffic warden, Majeed Achakzai was acquitted for ‘lack of evidence’!! Is the judicial ‘system’ working when our courts, despite a lapse of seven years, have been unable to convict a single individual in the Model Town massacre? Is it working for the people of Baldia Town Factory fire? Is it working for those who lived under Uzair Baloch’s terror regime in Liyari? Did it work for those who were killed during lawyers’ attack on the Punjab Institute of Cardiology?

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As hard as it may be to accept, the truth is that this ‘system’ is not working. We can make excuses for it. Perhaps our Constitution is not the problem. Maybe the fault rests with a particular political party, or the Army, or a few judges, or the culture, or the time, or the people. Maybe everyone is to be blamed. But, incontestably, the system is not working. It does not nurture deserving and fresh political leadership. It does not deliver basic State services to those who deserve them the most. And it does not punish the wicked or recompense the innocent.

We need a new system in Pakistan. Or, at the very least, we need to amend the existing one in a manner that brings about fundamental changes in our constitutional paradigm. We can choose to do so voluntarily. Or we can wait for Allah Ditta to force our hand. And human history bears witness to the fact that any time people have taken it upon themselves to change the ‘system’, such change has almost always been accompanied by heads on pitchforks, hung at the city gates.

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