By Dr Ghayur Ayub
Aristotle observed that, 'given the choice between a king who ruled by discretion and a king who ruled by law, the latter was clearly superior to the former.' In recent times, Albert Dicey, who is considered to be the godfather of the unwritten British Constitution, had laid out three principles in his 1885 book An Introduction to the Study of the Law of the Constitution, stating that; everyone is equal before the law; no one can be punished unless they are in clear breach of the law; and there is no set of laws which are above the courts. This became the basic framework of his work on the constitution. The third principle proves contentious amongst experts as it implies that the courts would be above a written constitution. It is for this reason that they look suspiciously at Dicey's notion which states, 'Parliament thus defined has, under the English constitution, the right to make or unmake any law whatsoever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.'
In Pakistan, the backbone of democracy-the written constitution-stands on three pillars; legislatives; judiciary; and executive. These pillars sustain the constitution of the state. The constitution in its turn, gives independence and strength to these pillars through its articles. In this way, the constitution, though framed by the legislators, becomes superior to all three. This fact is concealed, ignored or both by some members of the bar from the judiciary side and a few parliamentarians from the legislative side. In a recent stand-off between the judiciary and the executives, this point was exploited when die-hard legal minds like Kurd from the bar and manipulative minds like Babar Awan from the executive, started harping an identical tune claiming the legislative body (the parliament) to be superior to the judiciary. When this question was put bluntly to Kurd in a talk show, he did not hesitate to stick to his guns; so to speak. While his colleagues such as Aitezaz Ehsan and Fakhruddin G Ibrahim, called the constitution superior and its constituent organs-the pillars-as equal and independent. Does this make Kurd a fiery speaker with only a raw knowledge of the constitution? Or is there other reasons for showing such an apparent naivety towards the constitution? One can understand why Babar Awan took a stand against judiciary but Kurd? His bizarre stance has confused people who saw his unambiguous role in the bar-bench relationship and independence of judiciary in the lawyer's movement.
The constitutional experts tell us that the Constitution of Pakistan, also, has a basic framework, which even the legislators cannot change through constitutional amendments. That framework consists of; Islamic creed; basic human rights; provincial federation and independent judiciary. According to them, although the judiciary is in place to interpret the constitution, it has the power to strike down any article introduced through constitutional amendment by the legislators that changes the basic framework of the constitution. Similarly, it can take action against the executive when the latter acts in an unconstitutional manner flouting rules and regulations. Does it make this pillar more powerful than its sister pillars? Some might believe so. It is no wonder Churchill placed tremendous importance on the judiciary during the re-constructive efforts of a war-torn and devastated British society after WWII. Also, it is no wonder that important cases pertaining to certain articles in the 18th constitutional amendments have been heard by this pillar. Does this make it superior to the other two? Not really because all work in accordance to the powers prescribed by the constitution, which remains superior. It, having strong bureaucratic make-up and powerful legal background, is known to be blindfolded in its decision makings.
There is some ambiguity about the third pillar of executive also. We are told the executive are those legislators which, after winning the elections, form the government from PM down to the chairmen of various committees. But in working Oganogram, it is the bureaucracy which is the real government from the secretary down to the section officers. For example, in the eyes of the law, a decision taken on a matter is incomplete without the signature of the secretary; not the minister, not even the prime minister. This makes the third pillar containing two components; the legislative and the bureaucracy. The former acts as a link between the parliament and the bureaucracy. It is for this very reason that ministers ask secretaries of their choice to ensure the smooth running of the government. It is this link which opens a window of corruption, through which bureaucratic expertise and knowledge is used/misused in the decision-making of dicey deals. The legislators, thus, corrupt the bureaucracy by mutual obligations and in the process, both destroy national interests.
This is the constitutional aspect of democracy, where politicians often manipulate the legislative or bureaucratic aspect of the executive to get mileage on issues irrespective of them being clean or corrupt. What about the public? How do the politicians in democracy play on the psyche of the voters?
In the framework of democracy, politics becomes a game of possibilities and probabilities on one hand; and perceptions and reality on the other. The politicians stand in between these four and play with the emotions of the public. How? Initially, they learn how to mix the possibles with the probables and vice versa. The more they advance in this technique, the better they become in politicking. At a later stage in their political life, they learn how to convert the mixture into perception and with the passage of time, they master the method of changing perceptions into reality by constant repetition. The older they grow, the better they become at the art of convincing people and playing with their psyche. Thus, politics for them become a game played on four wickets; the possibles; the probables; the perceptions and the reality (PP&PR). All they do is artfully confuse people in a bizarre equation between the four. In the end, they themselves fall in to the trap and fail to differentiate possibles from probables and perceptions from reality losing certain politico-social principles and ethics. They call them medium and long-term political strategies; which in actual terms means nothing but self-induced deception actualising a saying that repeat lies become truth in the mind of a liar In other words, perception turns into reality in their mind.
As a part of a political game, when the number of the confused public reaches the point of critical mass, they make a political move which some would call a genius decision others an immoral act. Whatever the nomenclature, they become the political game masters by playing on the feelings of the simple minded public to gain political advantage. The desperate people, looking for a saviour to their miseries allow them back to the positions of power that they were displaced from in first place, with the hope they might have changed.
Thus, democracy in countries like Pakistan, becomes an intriguing game for some politicians to gain power through means which in western countries can only be termed as deceit. People in their naivety are overwhelmed with expectancy, and repeatedly trust and elect them creating a vicious political cycle of hope, disappointment and hope. Some politicians manage to bond PP&PR with one or more of the pillars of the constitution for individual greed, personal benefits in the name of democratic statecraft and even national interests. The game gets muckier when the clergy jump in to the political arena, mixing the sensitive credos of religion with the overburdened politics of deceit to achieve worldly gains in the name of divine blessings. These are the worst lot as they not only deceive the public in the present life but also in the hereafter. How they look in to their souls and find god is an inconceivable mystery. In their game between evil-hood and godhead they try to win over both worlds. How painfully sad it is.
The game becomes even sadder when some crafty politicians use discretionary rules of law and a few dodgy religious leaders use fatwas to play on the emotions of the public, place fear in their minds or both to achieve their political aims. Thus, the profane game goes on through the actions of some politicians and religious custodians in the field of democracy. God bless Pakistan for having some powerful politicians playing unethical games with the public psyche in the realm of the constitution and democracy.