The current tug-of-war between the executive/parliament and the judiciary may be seen from two perspectives: one, as a morbid manifestation of a crumbling social order in which the key norms and standards relating to governance – having their sanction in law, morality, or simply utility – are being set aside; and two, an expression of the evolution that our society and polity are in the throes of that may lead them to a higher plain.
The edifice of social order rests on shared expectations members of a society hold towards one another. These expectations stipulate that certain norms and standards such as inviolability of human life and dignity and justice for all will be observed, and certain others shunned. The failure to fulfil these shared expectations gives a jolt to the social order.
In any event, the social order is constantly being challenged by counter-values, beliefs and behaviour patterns. The institutions are supposed to steer the social order to cope with these challenges. But if institutions themselves are on the warpath, the social order is shaken to its foundations.
When a society comes to such a pass, the distinction between the lawful and the unlawful, right and wrong gets obliterated and the questions of morality or of law take a backseat, as each side challenges the very assumptions on which its adversary builds its arguments. Hence, what is manifestly unjust or outright unconstitutional in the eyes of one party is out-and-out legitimate in its antagonist’s book. One only needs to look at the conflicting stances taken by the key stakeholders on holding provincial assembly elections in Punjab and the formation of the benches to confirm this thesis.
Can dialogue among the institutions, with a view to putting in place a framework to ensure smooth working of the government as well as arriving at a consensus on key constitutional issues, set things right? The view has much to commend itself to. In Pakistan, parliament has not been accorded its due status. Of the three organs of the state, the legislature seems to be the weakest; being the repository of the popular will it should be supreme with all other institutions being accountable to it. Dialogue among the institutions may help correct this aberration.
That said, such a proposition has obvious limitations. In the first place, why does the inter-institution conflict arise? Can it be put down to absence of relevant constitutional or legal framework? Do the institutions scramble because they are working in a legal void? Are some of the judges not well versed in the law of the land and jurisprudence, which makes for allegedly faulty interpretations on their part?
The law and the constitution are there, and each institution knows well what they stipulate. The legal framework and the role of each institution, of course, can further be clarified. Likewise, the laws and the constitution may further be amended to tone up the powers of parliament, particularly to divest the courts of their competence to send the lawmakers home at the drop of a hat.
But measures such as these are not likely to make a crucial difference. The subversion of the constitution since its inception has been an act of high treason punishable with death. But that did not prevent military takeovers. Likewise, the now defunct Article 58(2b) of the constitution, which empowered the president to dissolve the National Assembly at his discretion, was widely regarded as a lethal threat to the supremacy of parliament and democracy. But did the demise of that article at the hands of the 18th Amendment make elected institutions supreme or enable the prime ministers to complete their terms?
In recent years, Articles 62 and 63, which together prescribe the eligibility criteria for the legislators, have done as much damage as the erstwhile Article 58 (2-b) did for pretty similar reasons.
The issue on hand is not in the main legal, much less ethical. In a controversial situation, says German philosopher Hegel, each side considers itself to be totally in the right and its antagonist wholly in the wrong, whereas in point of fact each is partly wrong and partly right. But being right or wrong is merely an academic question. One notion or movement defeats another not because it is legally or morally on a stronger ground but because it has greater force behind it.
In the scramble for power, democracy does not have guns or tanks to count on. The principal weapon available is popular support. No earthly power is stronger than the people’s. But for the people to put their weight behind democracy or an elected government, they must have high stakes in the preservation of the democratic order. In the absence of such stakes, revival or overthrow of the democratic order, or for that matter induction or exit of a government, will make little difference to the vast majority of the people. They may even welcome the change in the hope that the new dispensation will make things better for them.
Thus if parliament or civilian institutions wish to be paramount, not on paper but in fact, they need to look beyond dialogues and legal and constitutional amendments – important though they are – to win the unshakable confidence of the people.
Coming to the second perspective, we may go back to Hegel, who famously described tension of opposites – or the dialectics as he would term it – as the underlying force in the march of history, the rise and fall of nations and growth of civilizations. Every idea and every situation (called thesis) invariably gives rise to its opposite or antithesis. In the course of time, the two merge into a synthesis, which creates its own antithesis, and so on. Though painful, conflict creates a new and higher situation.
“Periods of happiness,” says Hegel, “are empty pages in history, for they are the periods of harmony, times when the antithesis is missing. What is left to life is simply habit, activity without opposition.”
Seen from this perspective, the clash of adversaries is to be welcomed rather than feared. Which side wins or loses, thrives or gets decimated, is beside the point. What matters is the fact that the clash is both a necessity and a desirable step in the evolution of society.
One may not see eye to eye with the Hegelian view that conflict is always good. However, it is hard to deny that conflict is not inherently bad. Conflict, it must be admitted, has been a powerful instrument through which history advances and societies transform. But for the strife among the adversaries, people would not have seen the Renaissance and the Reformation or the Glorious (1688), French (1789), Russian (1917) and Chinese (1949) revolutions.
However, the change produced by a conflict can be a change for the better or the worse; it may usher in development or decadence, growth or decay, progress or regression, order or chaos, peace or mayhem, greater harmony or discord.
The current situation may be seen from the Hegelian perspective. In recent years, we have witnessed intense antagonism between the judiciary and the executive (and parliament). In 1997, the then chief justice of Pakistan (CJP) was close to throwing out an elected prime minister before he himself was axed. Then in 2007, the then president and army chief clamped an emergency to get rid of ‘trouble-making’ members of the higher judiciary.
Although the proclamation was validated by the apex court, it set in motion a chain of events which led to the exit of the president himself, while the ‘purged’ judges were back to the benches after a while. In 2012 and 2017, prime ministers were given the boot by the Supreme Court for contempt of court and concealing assets respectively.
In sum, the judges maintain that they have the last word when it comes to the interpretation of the law and the constitution, all else is wit and gossip. The executive and parliament see them as overstepping their constitutional mandate or not being even-handed.
In a given instance, which side stands on a firmer footing is open to debate. The important thing, however, is that conflict is likely to continue to preside over the relations between these institutions, as a concomitant – if not the driver – of the evolution of the polity.
Email: firstname.lastname@example.orgHussain H Zaidi, "Anatomy of a conflict," The News. 2023-04-08.
Keywords: Political science , Political issues , Military takeover , Parliament , Judiciary , Hegel , Pakistan , CJP