Trickle-down effect by Babar Sattar

Legal eye
 The writer is a lawyer based in Islamabad.
 Can an experience or message incite optimism and gloom at the same time?
The pellucid and hope-inspiring experience that Nitesh Kumar, the chief minister of the Indian state of Bihar, shared with Pakistan this past week did just that. At a roundtable chat at the Institute of Strategic Studies Islamabad, the Bihar CM had been invited to narrate the story of his state’s miraculous turnaround. ISSI DG Ashraf Jehangir Qazi opened the talk putting the changed status of Bihar in perspective by reminding everyone of the famous quip from the 1990s: India would be willing to give up Kashmir on the condition that Pakistan take Bihar as well!

Bihar, once the epitome of chaos, corruption and crime, has turned the page. It now boasts the highest growth rate amongst all Indian states and is emerging as an imitable model for good governance and rule of law. Proponents of change in Pakistan, who believe in their own potential and ingenuity but are pegged down by status quo forces and despondency, were interested in learning from Bihar’s experience. That Bihar could become a showcase in such a short span of time, and so can we, inspired hope. That there was no rocket science involved, but essentially leaders and citizens committed to doing the right thing, incited gloom.

According to the Bihar CM, rule of law restored public confidence because people started to believe in an impartial and even-handed application of the law. There was clarity of vision that Bihar had to become a rising boat with the most marginalised segments of the society in the upper deck, no exceptional treatment for the elites and zero-tolerance for corruption. The absence of governance in Bihar has been replaced by a commitment to provide 52 state services through a time-bound mechanism. In short, a citizen-focused vision for change together with the discipline to implement it has done it for Bihar.

Is such change not within our grasp? It is, but we’re failing because even those within our ruling institutional elites who voice unequivocal commitment to rule of law and democracy seem to falter when it comes to applying the principles of impartiality, equality and accountability to themselves. Let us consider a few disjointed recent events. The objective here is not to evaluate the relative commitment of Pakistani institutions to rule of law on a sliding scale. The idea also is not to pick the ‘lesser evil’ between the executive, the khakis and the judiciary or opine on the motivation or timing of their actions, but simply to take measure of events on the touchstone of rule of law.

Let’s start with the civilian regime and acknowledge that the Zardari-led PPP deserves credit for consistency for it has hardly exhibited any commitment to rule of law or its importance and cannot thus be faulted for hypocrisy. It propagates the idea of NRO-for-all (free-for-all?) and its approach to governance is best captured by the words of Madame de Pompadur (the courtesan and mistress of Louis XV): apres nous, le deluge (after us the deluge).

This past week President Zardari kicked-off election season 2013 in Malikwal. In the dual-office case in 2011 the Lahore High Court had held that the duties and functions of the office of the president are “to be discharged by him with complete neutrality, impartiality and aloofness from any partisan political interest.” The decision was never appealed and is now final and binding. The Lahore High Court is presently hearing a contempt petition alleging that the president is violating the court order.

If there was any ambiguity left about the president’s partisan political role, it has now been laid to rest by the Supreme Court in the Asghar Khan case. It has held that (i) the president of Pakistan is in “service of Pakistan” as his office is not excluded from the relevant definition under Article 260 of the constitution; (ii) the president by implication doesn’t have Article 17’s freedom of association rights, just like judges, bureaucrats and army officers etc; and (iii) a president who indulges in partisan political activity violates his oath pursuant to Article 42 whereby he has sworn not to allow his personal interest to influence his official conduct.

One can disagree with such a construction of the constitution. But it is now law. And the president’s political role is even more problematic during election time. Our constitution prescribes a neutral caretaker setup to administer elections. As the president is deemed to be non-partisan, the constitution doesn’t require him to resign prior to elections. Won’t his continuing involvement with electioneering at state expense afford undue advantage to the PPP and distort the level-playing field for competing parties? Won’t his partisan political activities undermine the Election Commission’s solemn duty under Article 218 to “ensure that elections are conducted honestly, justly, fairly and in accordance with law”?

What is the message that trickles down if a political party meeting that the president heads is called ‘Eid milan party’ in an attempt to get around court orders? Is the harm to rule of law quantifiable if our head of state’s response to its requirements is trickery? And what about the wailing laments of the Gilani scions in parliament for being proceeded against by the FIA? The message that emanated was simple: parliamentarians are a privileged lot and the FIA dare not treat them like ordinary people. Bumper plates on cars warning all and sundry that the traveler is an MNA/MPA/Senator echo similar sentiment.

If the motivation of those craving power is not to use it to apply the law but to garner the ability to rise above it, what is the future of rule of law? Recently “unidentified assailants” beat up Col Inam Ur Raheem, a retired military officer and a practicing lawyer, in the heart of our good old khaki town Rawalpindi. Col Raheem had been advocating cases of missing persons. He was representing Brig Ali who is facing a court martial for being in bed with Hizbut Tahrir. Most recently he had challenged General Kayani’s eligbility under law to remain army chief after reaching the age of 60. And this past week a divisional bench of the Islamabad High Court fixed the matter for hearing in end November.

Col Raheem has claimed that the army warned him against taking up cases that it believed were contrary to khaki interests. He refused to capitulate. Khaki media managers will now tell us that Col Raheem being ‘roughed up’ at a time when he was stepping on powerful khaki toes is a mere ‘coincidence’ and that the military high command believes in rule of law, as stated in the recent ISPR release, and has nothing to do with this event. The truth of these claims will unfortunately be no different than that of the Zardari-led Malikwal meeting being an Eid milan party. The message is clear: rule of law is all well and good, so long as its reach stays away from the very powerful.

Col Raheem might be completely misguided. He might nurture a personal grudge against the khakis. But does any of this take away his right to accept a brief from an accused seeking to be defended in a court of law? Must he desist from making legal arguments because they might offend the army chief or others within his chain of command? If General Kayani is the proponent of rule of law that he claims to be, shouldn’t he personally ensure that the brutes that tortured Col Raheem are brought to the book, and facilitate him in arguing his case against the general without fear? Are principles worth anything if ignored when inconvenient? There is no denying the trickle-down effect. The question is will rule of law trickle down or its defiance.



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