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Friday, June 21, 2024

Why have we lost faith in our system?

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.

America’s defeat in Afghanistan, and the corresponding rise of Sino-Russian power is likely to have lasting consequences for the existing ‘rules-based international order’, and its corresponding systems within various countries. Despite 20 years of war, and more than $2 trillion dollars spent, America and her Western allies could not install a sustainable democratic enterprise in Afghanistan.

Why? Because the system that Americans tried to impose upon Afghanistan had no real roots in the cultural and societal realities of the local people. It had been borrowed from English textbooks of the West—a unitary executive, similar to the American presidency; a legislative forum, borrowed from British Parliamentary tradition; a judiciary that followed Western norms of legal interpretation; and an executive machinery that tried emulating the colonial system of the Raj.

A borrowed system from the West 

Afghanistan, thus, is a cautionary tale: that systems that don’t have their roots in the domestic cultural, societal and religious realities, never work for long.

Read more: Beyond Kabul: The new international ‘rule-based order’

And so, other countries who have borrowed their ‘systems’ from the West (including Pakistan) must ask themselves: is our ‘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 the welfare of the populi, finds expression in the corridors of political, legal, and administrative power.

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 recompense the innocent; and mandate executive authority to deliver services in a non-discriminatory manner, without fear or favour.

Read more: Fixing Pakistan’s broken democratic system

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

The problems within 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 the 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?

Read more: Fixing Pakistan’s broken democratic system

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, the Sardars of Balochistan, Chaudhrys 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 Rs1.5 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.

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 favour? Does the Thaana, despite all provisions of the relevant police laws, treat Allah Ditta at par with the local political leader? 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?

Read more: The unceasing plight of Hazara community

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?

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 a ‘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!

Read more: Is the Supreme Court of Pakistan on trial?

Why we have lost trust in our judicial system?

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 Lyari? Did it work for those who were killed during the lawyers’ attack on the Punjab Institute of Cardiology?

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.

Read more: Motorway incident reveals years of injustice

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.

Saad Rasool is a lawyer based in Lahore. He has an LL.M. in Constitutional Law from Harvard Law School. He can be reached at saad@post.harvard.edu, or Twitter: @Ch_SaadRasool. This article originally appeared in The Nation under the title, “Does the ‘system’ work?” and has been republished with the author’s permission. The views expressed in this article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.