Missing element from Feisal Naqvi’s “Antifragile” Democracy

Zardari signing 18th Amendment

Feisal Naqvi makes some good points in his latest piece for Express Tribune, ‘Making our democracy “antifragile”‘. As he correctly notes, concentration of power in the hands of one person is the antithesis of democracy, and creates a political environment in which authority resides in individuals and not institutions. Feisal uses several contemporary examples, but he leaves out other important elements also.

As an example of an institution that is improperly consolidating power into the hands of one individual, Feisal Naqvi points to the Supreme Court.

The desire to centralise power is not one which afflicts executive officials alone. The unanimity with which the Supreme Court now speaks is such that, according to one commentator, “not one judge in these four years [since the restoration of the CJP in 2008] has disagreed on a single point of law in a major constitutional case”. I agree entirely that this is a disturbing sign. Common law courts form a resilient, antifragile judicial system precisely because they allow for a multiplicity of views to exist before being slowly resolved over time. Views thus get thrashed out amongst different judges with different viewpoints. Good points and bad points both get slowly identified. And only the concentrated common sense of the judiciary eventually survives.

By contrast, what one sees quite often is a multiplicity of issues getting decided directly in the Supreme Court, and that, too, without dissent. This is not a healthy development. Dissent is a good thing because it is a sign of life, a sign of independent thinking, and more importantly, because today’s dissent can become tomorrow’s orthodoxy. More importantly, we need to give appropriate time for these issues to be examined in detail rather than simply seeking to address all aspects in one go.

It’s not only the Justices that are falling down on their job of properly weighing all views and engaging in healthy dissent. The Government Punjab also comes into his sights when he notes that “Mian Shahbaz Sharif held 18 portfolios in his own cabinet”.

Feisal Naqvi also criticises coalition parliamentarians for deferring to the President to nominate a replacement Prime Minister rather than working to find a consensus candidate. There are several valid complaints to be made about parliament, but this one might be a little bit unfair. When parliament adopted a consensus approach to developing a new set of terms for renegotiating relations with the US, the process dragged on for weeks beyond the original deadline. Unfortunately, the Supreme Court did not offer the luxury of time in choosing a new Prime Minister as their Lordships in their infinite wisdom rendered the nation leaderless since the past two months!

What Feisal Naqvi’s otherwise good piece was really missing, though, was an acknowledgment of what progress has been made towards sharing responsibility “across persons and institutions in the way that the burdens of democracy are meant to be shared”. Ironically, the person who has probably done more to advance Feisal Naqvi’s vision is none other than President Zardari himself.

In 2009, President Zardari voluntarily returned control over the nation’s nuclear assets – a power usurped by a military dictator – to the Prime Minister. In 2010, President Zardari signed the 18th Amendment bill that went even further in reducing his own powers as well as devolving many responsibilities from the Federal to the Provincial governments. The extraordinary nature of this act – a sitting president voluntarily returning powers that had been usurped by dictators – was noticed throughout the world.

In his 2011 Address to the joint session of Parliament, President Zardari thanked Allah for guiding him to reduce the concentration of power in the government and to spread responsibility among institutions.

Returning power from dictators to the people was the core of our promise.

Rarely in history has a leader abdicated power by his own free will.

My head bows in gratitude before Allah, for giving me the strength, to give up powers that had been usurped by dictators.

Actually, the 18th Amendment which devolved powers and shared responsibility was passed unanimously by parliament, and that institution deserves great credit. Actually, the only person against it was Chief Justice Iftikhar Chaudhry who was opposed to sharing the responsibility of selecting new Justices – he preferred to keep all that power consolidated in himself as if the Court were his personal fiefdom. Thankfully, reason – through the parliament – won the day.

Finally, though Feisal Naqvi touches on important responsibilities of government officials, he leaves out the responsibilities of citizens. I will not defend everything that parliament or President Zardari has done. Some I have agreed with and some I have disagreed with also. In a democracy it is our right to criticise our leaders when they fail us. But it is also our responsibility to recognise when they do things right. If we are unwilling to give parliament and Zardari their due, what incentive will the next group have for even trying?

Army and Governance

Musharraf loves to talk about his belief that Army should have a constitutional role in governing the nation. But is Army the answer to good governance, or is it part of the problem? According to Irfan Husain, we may be better served with less of the Army’s input than more.

In Pakistan, however, budgetary allocations are skewed by the fact that the army plays such a dominant role in the process. Not only does it assess military risks, but it evaluates intentions as well.

Finally, it virtually dictates to the government what resources it wants. Such is its stranglehold over the institutions of the state that the single-line entry for defence in the budget is not even debated in the National Assembly.

Ultimately it is the allocation of resources and the taxation structure that reflect the true distribution of power. In Pakistan the military siphons off the lion`s share of resources and the feudal class pays no taxes, while the business community gets away without paying anywhere near what it should. In this sense, both our income and expenditure are off-kilter.

Obviously, and as Mr Husain rightly notes, Army’s involvement in the budget and parliamentary consideration of national priorities is not the only factor which is causing problems. And equally it is obvious that Army plays a vital role in the defense of the nation. But just as MNAs should not be determining military strategy also Generals should not be making national policy.

Silent Successes

After doomsday predictions ranging from a war between the judiciary and the executive to the downfall of the republic itself, Daily Times reminds us that as usual the complaints of the chattering class about the section of the 18th Amendment that established the process for appointing of superior judges was much ado about nothing.

Contrary to perceptions of a confrontation between parliament and the judiciary created during the court hearings on the 18th Amendment, the new system has started off smoothly, with the unanimous election of Senator Syed Nayyar Hussain Bokhari as chairman of the parliamentary committee and establishment of its rules of business. One can be sanguine that the procedure of broader consultation and more transparent mode of appointment of judges can work with necessary improvements.

Perhaps this is something that we should keep in mind as the same voices are raising the same dire pronouncements for the passage of RGST. Perhaps we should also ask ourselves why it is that we are so quick to loudly pronounce new laws a failure before they’re even implemented, and so silent when we discover that they are actually a success.

Supreme Court’s 18th Amendment Decision

You have to hand it to the Chief Justice – he may have walked right up to the edge of the cliff, but he stopped before pushing the country into the abyss. Announcing a verdict on his suo moto hearing on the constitutionality of the 18th Amendment to the constitution (a bizarre bit of self-referential argument if there ever was one), the Supreme Court expressed its concerns with Article 175-A, but stopped short of upending the nation. All things considered, the court appears to have come to the correct conclusion – the authority to amend the constitution lies with the people through their elected representatives in parliament.

The apex court in its decision ordered that Article 175-A, detailing the amendments to the procedure of appointing superior court judges, be sent back to the parliament for review.

“Parliament is asked to review Article 175-A, for it has harmed judiciary’s freedom,” Chief Justice Iftikhar Chaudhry stated, adding that consultation with the chief justice was necessary for the appointment of judges.

It is significant to note that the apex court decided to send Article 175-A back to the parliament for reconsideration instead of striking it down.

Clearly the court is not happy with Article 175-A. And I won’t take the time to make any particular argument for or against this specific article. But the court smartly avoided a constitutional crisis by not superseding the written constitution.

The Prime Minister handled the announcement with a great deal of class, saying that he appreciated the judiciary’s show of respect for the parliament and that, as parliament also respects the judiciary, he would work with the National Assembly to move forward with the court’s request and review the article in question. This is how a properly functioning democracy works.

I do want to say a bit about the guiding principles that became such a hot topic over the past few months. While it is without question that there are certain guiding principles behind the constitution, these principles do not exist above the written law. Actually, the exist within it. Just as the spirit of a song exists within the melody and the lyrics, so also the guiding principles of freedom, independent judiciary, division of powers between branches etc etc etc exist within the written words and the judicial interpretation of the nation’s defining law – the constitution.

This, of course, raises the question as to whether the constitution could be amended to say things that are against these guiding principles of a liberal democracy. I think the answer is obviously yes – we have seen just such abuses perpetrated by past dictators, and we are still working to undo those abuses. Actually, this is part of the reason the 18th Amendment was passed unanimously.

But just as the abuses of a tyrant cannot break the spirit of the people, so they also cannot break the spirit of our constitution. If there any errors or abuses find their way in, we will remove them. But it is vital that we do so properly. We cannot set our hopes on the benevolence of any dictator – military, civilian, or judicial. By trusting each other and working honestly to resolve our concerns and our disagreements, we are the masters of our own fate. We are a democracy.