The great refusal

Fingers rap against desks, thumbs twiddle, legs twitch in impatience. A man with his waistcoat unbuttoned glances at his peer, confusion marring his face. She shrugs, brow furrowed. The constitution is to be amended today, they are told, but what shall those amendments be? This, they are not told. There shall be a vote today, they know, but where did their leaders find the requisite votes from?

The most favoured among their numbers, well-titled, thin-lipped, and tight-eyed, are similarly in the dark. Hours pass. The reason for their gathering seems as distant as when they were herded into parliament.

The draft amendment is not leaked until after the session has been adjourned. Its uncovering is succeeded in short order with disbelief and outrage. So audacious and wide-reaching are the implications of the changes wrought therein that the nation is forced to recoil. The same people who, one might assume, were ostensibly in charge of drafting such an amendment are quick to assert their ignorance of its contents. The "constitutional package", for all its supporters in parliament, is an orphan the moment its contents are shown to the public.

But parliament’s support for the package isn’t merely outrageous. It’s also self-defeating. When a politician runs from the praetorian, he goes to the court. It was the bar and the bench that hammered the final nail in Pervez Musharraf’s dictatorship. It was the bench that undid parliament’s dissolution when Imran Khan was ousted. It was the head of the unbowed judge that allowed the very politicians now inviting ruin to return to politics. Our representatives know this. The question, then, is what could possibly compel them to sign their own death warrants? What force trumps self-preservation?

Would that the impetus behind such hideous legislation been base fear of the imperious judge. But it is not. This wasn’t the first salvo in a crusade against an independent judiciary. This is merely the latest blow in a long, bitter war. Overreach and praetorianism has been met with a continuous, consistent, voluntary ceding of space to manoeuvre and lead to the praetorians and the hawks.

Consider Sangjani. The rally is as most PTI rallies have been as of late — teargas and batons, microphones and floodlights — an abundance of pathos, some ethos, little logos.

This is expected.

What is unexpected is the police blockade of parliament a day later. The power is cut off. Men in plain clothes and plainer intentions storm the building. One after the other, Pakistan Tehreek-e-Insaf (PTI) legislators are dragged away. No meaningful resistance can be mounted, but there are cameras aplenty. They capture flashing grins and sweat-draped crowds and incoherent shouts — to stop, to continue. Outrage ensues. The assembly is host to scenes of fire and brimstone. Notices are issued, officers are suspended.

PTI stalwarts rage that it is an assault on the constitution, on parliament, on democracy at large. The Pakistan Muslim League-Nawaz (PML-N) hits back — the constitution isn’t threatened by the arrests, but it is by calls for a Pashtun invasion of Punjab and by one-man deals with foreign powers. Our politicians’ spin on "they started it!" is enjoined simultaneously with calls for unity and prosperity for all.

Let us be perfectly clear. Ali Amin Gandapur’s remarks were, at best, the ramblings of a man floundering at sea whose strategy of choice is to try and shout the water down. But no matter how manifestly undemocratic his conduct was, arresting sitting lawmakers from parliament — without so much as a notice to the speaker — is no less odious to democracy.

Our politicians are masters at peddling outrage. The constitution is holy until it isn’t, democracy is beloved until it is inefficient, and parliament is supreme until it steps on the wrong jackboot. Knowing this, why don’t we drop the charade and accept reality for what it is?

Pakistan looked at democracy and saw a sleek sports car that had the world swooning. We then had a wooden mould of it made, hammered some aluminium sheets on top, painted them a bright shade of red, screwed in a set of Pirellis, and called it a day. The ridiculousness of rendering low the sanctity of parliament doesn’t even register in our leadership’s collective consciousness.

But power is not satisfied with violating the dignity of parliament. A week later, it attempts to smite from existence the last bastion of influence not wholly within its grasp. A draft amendment is brought forward that would take the judiciary’s powers and make them subject to the whims of the executive, and the praetorians that sit above it. When lawyers and politicians strike back, the amendment’s supporters are quick to cite examples of judicial activism that threw the country off the "track of progress".

But that truth does not make secondary the sheer illegitimacy of such an amendment. In pushing these constitutional amendments, parliament assumes it is sovereign in ways the constitution and the collective wisdom of the people — sieved through the collective efforts of jurists for fifty years — repudiate and deny. From the very instant of the creation of its current form, parliament’s sovereignty to legislate has derived not from internal supremacy, but the framework of the constitution.

In simpler words, parliament and the laws it brings forth are bound by fundamental understandings about the premises of state. The authors of the constitution understood this — to hammer it in, they made the existence of an independent judiciary part of the preamble, thus subjecting all that followed to the void in the absence of such. The authors of the constitutional package understand this, too, but where the constitution celebrates a liberated judiciary, the amendments seek to debase it entirely.

We know, by now, that it seeks to make hollow the Supreme Court’s powers and jurisdiction in favour of a court whose judges are appointed by the president. We know what the effects will be on the judiciary’s ability to safeguard the constitution against laws that seek to undermine it. We know that fundamental rights cases — which encompass some of the most politically bitter litigation taking place in the country right now — will cease to hold meaning. We know that the praetorians would be granted universal legal cover in the name of "national security". We know, fundamentally, that our judiciary would not be independent in the wake of such an amendment.

This is not reform; it is coronation by other means, an attempt to bind the courts to the whims of the executive.

Consider. When the judiciary was at its most vulnerable, it wasn’t a crusading judge that stayed the death of his own institution. Instead, it was a maverick politician, a wheeler-dealer par excellence, who refused to let such an amendment pass. It was his few votes that put a stopper to a gross violation of the fundamentals of the constitution. Self-interest, no doubt, played a role. But regardless of how the chips fall in the coming weeks, it is the Maulana Fazlur Rehman's gran refuto that has granted us time to gather. And that is where more of our attention should be focused.

What started off as a matter of necessity — that the courts were the only institutional bastion left to wage war against tyranny — has now become the default. Our last choice in rebuffing praetorianism became our first. The longer the survival of our democracy hinges on the willingness of the judiciary to intervene, the more the praetorian will take for himself, till no court, no matter how Supreme, may stop him.

Judge Learned Hand, a man possessed of towering intellect, knew the folly of expecting the judge to guard liberty alone. There were those of his black-robed ilk who saw in their gavels the swords of guardian-knights or the sceptres of sage-kings. Hand held himself with no such pretences.

To him, a judge served as but an interpreter. Review of Congress was despotic and unwarranted. All law was compromise, and if such a compromise came to be enacted by the legislature, it was not for a judge to refashion it by even a syllable. But it was not the incompetence of the judge that moulded his beliefs, but that the people held a greater competence to determine their future for themselves.

A constitution, he believed, capable only of being saved by the court could no longer be saved at all. Judges, Hand thought, were simply too few in number, too distant from the motive force of the masses, to wrestle with tyranny where parliament failed. A parliament that did not fear its voters, and thus guard their rights, would not fear a bullish judicature. We saw the truth in his beliefs first-hand when the PTI was stripped of its symbol. We saw it when the Election Commission of Pakistan (ECP) disregarded court orders. We see it now as the constitution prepares for a second siege. The strong, unbowed judge can only aid in the nurturing of democracy. He cannot sustain it on his own.

We fear the praetorian that demands obedience. But his conduct is manifestly wrong, easy to spot, and easier to condemn. What is more insidious is the politician who decides, of his own will, to surrender the responsibilities and powers of representative office to the praetorian. When such a politician darkens parliament’s halls, our destiny no longer remains in our hands.

For every man willing to seal the deal with the Devil, there must be another who has surrendered himself to loftier ideals — liberty, rule of law, democracy, justice. There were such men and women — silent, unappreciated, scorned by the polity that they sought to protect that day — who prevented the sale of our democracy that day. Would that they were in power today.

The writer is a student of law at King’s College London. He can be reached at: [email protected]

Disclaimer: The viewpoints expressed in this piece are the writer's own and don't necessarily reflect Geo.tv's editorial policy.

Originally published in The News