The Essence of Democracy
By Syed Sharfuddin

FOR years democratic elections and constitutional liberalism have formed an intrinsic part of western political culture. But in many countries, although multiparty elections are becoming the norm, respect for the rule of law, separation of powers and fundamental freedoms are on the retreat. The rise of illiberal democracy is therefore a cause for concern.

Today 118 of the world’s 193 countries are democracies. But in many countries, elections are neither free nor credible. In some countries the elected parliament itself imposes restrictions on the freedom of speech and assembly.

According to a survey, 50 per cent of the regimes which lie between confirmed dictatorships and consolidated democracy do better on political liberties than on civil liberties. It can therefore be argued that nearly half of the countries in the world today are illiberal democracies. Seven years ago this ratio was only 22 per cent.

Democracy without its essence is capable of producing inefficient, corrupt and bad governments. This is because the emphasis is placed on elections even though these may be multiparty, with greater participation by women. Constitutional liberalism, on the other hand, is not about procedures for selecting a government but rather the government’s goals. It refers to a tradition of protecting an individual’s right to life and property and freedom of religion and speech through the rule of law. The Magna Carta, the US constitution, the UN Instruments on Human Rights and the Final Helsinki Act are all expressions of constitutional liberalism.

The concept of constitutional liberalism evolved differently in many parts of the world but it was perfected in the late 1940s when most western countries became full democracies. More recently, central Europe has moved successfully from communism to liberal democracy in the same way as liberalism preceded democracy in other countries in Europe in the 1900s.

In East Asia, countries have incorporated many aspects of constitutional liberalism in their political systems. However, in other parts of the world, elections have not resulted in promoting democratic liberalism.

Absolute democracy can easily undermine liberty. At the same time, excessive emphasis on constitutional liberalism can lead to liberal autocracy. This imbalance has often led to tensions between the centre and local governments. Developing countries have argued for strong central powers to implement difficult and sometimes unpopular economic reforms. In contrast, countries with little centralised power and a tradition of managing pluralism have been able to progress quickly towards liberal democracy.

It is commonly assumed that democracy brings ethnic harmony and peace. Neither is necessarily true. Ethnic harmony is a feature of mature liberal democracies. In fact, without liberalism, introduction of democracy can lead to ethnic conflict and civil war. Democracy introduces an element of competition; liberalism tempers it with accommodation and protection of minorities.

Democratic peace has little to do with democracy. Countries with little tradition of consolidated liberalism can be hyper-nationalistic and are prepared to wage war to protect democracy. Liberalism gives democracies peace through constitutional rights, ensuring that no single leader can drag his/her country into war. It also creates economic interdependence making it costly for democracies to wage wars.There is a need to rediscover the liberal western tradition for the development of good government throughout the world. If a democracy cannot preserve liberty and laws, it is small consolation that it exists in name.

Constitutional liberalism is a gradual and long-term process in which an election represents only one step. If a country holds elections, a great deal from that government is accepted without much regard to its adherence to the rule of law. Also, little effort is made to create imaginative constitutions in transitional countries in order to take them beyond electoral democracy. This must change.

Governments must be measured by yardsticks relating to constitutional liberalism as well as elections. If a government is promoting economic, civil and religious liberties with limited democracy, it should be supported to do more.

Today, democratic governance is not threatened by monarchies, the church or dictatorships. Its problems lie within illiberal democracy, namely erosion of liberty, abuse of power, ethnic divisions and conflict. The most useful role that the international community can play to consolidate democracy is to encourage constitutional liberalism where democracy has taken roots.

One of the major considerations in recommending policy is how to respond to situations where parties and leaders that are corrupt and self-serving use money and muscle power to form governments. Should support for such elected governments be withdrawn or should there be new criteria established where other key elements of democratic governance such as commitment to human rights, the rule of law and separation of powers take priority, with elections playing only a secondary role?

If there is support for such a wider agenda, there should be an international instrument which binds all countries to adhere to certain basic norms of democratic governance against which the international community could demand compliance and provide appropriate assistance.

It has been argued that extremist parties and disparate groups have hijacked the democracy agenda by exploiting poverty, deprivation and external factors such as foreign occupation and economic and social injustice and won elections only to justify their actions in the name of popular support.

The debate is open on whether the democracy agenda be fundamentally altered to isolate such so-called democratic governments, or should there be engagement with them to ensure that they are persuaded to preserve fundamental liberties and laws in return for economic and technical assistance. Globalisation has deepened economic interdependence and integration has created a strong pull factor for such regimes to abandon extremism and violence and embrace constitutional liberalism.

Holding regular and legitimate elections has now become an accepted norm even though some countries are democracies only in name. Efforts should be made to make elected governments accountable to the people.

The international community should assist countries in reviewing their constitutions and legal and electoral framework to bring them in line with liberal democratic principles and strengthen democratic institutions, including electoral commissions to make democracy irreversible.

The doctrine of national circumstances has prevented many countries from accepting the fundamental values of democracy on the pretext that some of these are not compatible with their own history and culture. A major policy consideration is whether to address this issue globally and make liberal democratic principles universally accepted, overriding national circumstances.

Another area where research needs to be undertaken is placing limits on the terms of office of heads of state and government. Are such limits desirable in order to encourage retirement of leaders who have abused the power of incumbency to remain indefinitely in power? There are many examples in the developing countries where such ‘elected’ leaders are still in power.

In many transitional countries the performance of political parties has let down democracy. Political parties are either not mature enough or lack the courage to oppose autocratic rulers.

Political parties have also not been able to develop fully because of their weak internal governance structures, as well as their inability to develop codes of good practice for elections and for dealing with other political parties.

There are five key areas against which the performance of political parties can be realistically measured:

1) Political environment in which parties function and conduct their business. In many developing counties, this environment is fundamentally hostile to political parties. This affects their unity and ability to organise themselves as a formidable opposition.

2) External regulations that shape parties and party systems. Political parties are directly affected by the consequence of an imperfect constitution or its interpretation by a government which is only democratic in name but not in practice. It is also important to examine whether national laws put any restrictions on political parties such as an excessively restrictive framework for the registration of new political parties, limits on the freedom to exercise the right to assembly and free speech and what can be termed as government interference in their internal functioning.

3) Intra-party functioning. This is often the most neglected area of political parties’ work. While parties are active in the political field, they sometimes neglect to conduct internal elections and fail to devise rules and legal frameworks for the selection and removal of party leadership, candidate selection, mechanisms for dispute resolution, funding and internal audit.

4) Institutional shortcomings. Often political parties are found to be organisationally weak and heavily dependent on single leaders. Strong family connections and reliance on few sources for party funding also prevent political parties from transcending their leadership. Institutional issues involve long-term stability of political parties to command support of people which is essential for the stability of democracy.

5) Challenge of emerging new parties based on regionalism, ethnicity and egalitarianism. Established political parties face this phenomenon due to many reasons which include nationalism, rise of specific interest groups, and a desire to practise democracy locally. The performance of political parties depends on the role they play in maintaining inter-party relations and promoting pluralism and fostering peace and democracy. This also helps to form coalitions.

It is possible to rebuild trust in political parties by examining a number of factors that impact on their reputation. Political parties can function independently and efficiently if the external political environment is conducive to nurturing a liberal democratic system.

Political parties can be fully functional only if there is respect for the rule of law, independence of the judiciary and constitutional protection for freedom of assembly, religion and speech.

Without these democratic values, political parties can only struggle to survive and at best contest elections but not deliver much in terms of substance. Effort should therefore be directed first to correct the external environment for political parties to flourish.

It is also important that irrespective of the external environment, political parties raise their game by setting mechanisms for democratic functioning and observe codes of conduct for internal governance. They must play a positive role in parliament, in standing committees and during campaigns at the time of elections.

A major issue regarding the performance of political parties is lack of capacity. Many opposition parties are weak because of shortage of funds and insufficient training of workers. The international community needs to support political parties by offering technical assistance on such issues as internal democracy, inter-party relations, role and responsibility of parties in government and opposition, role of money politics and code of conduct for parties during elections.

Declining trust in political parties can also be measured from the low voter turnout at most elections. One way of rebuilding this trust is for parties to involve citizens in consultations at the grassroots level. Parties should be prepared to review their policies and mechanisms by taking into account public attitudes and opinions. They also need to build their ability to communicate with voters their achievements and proposals in a positive and targeted manner.

The writer is a former special adviser for political affairs in the Commonwealth Secretariat, London.

Source; http://www.dawn.com/2007/04/13/op.htm#1

Benefits of Rule of Law


By Syed Mohibullah Shah


IS poverty a problem of only the poor people in this country? Is rising unemployment a headache just for the young graduates running from pillar to post? Are the rule of law and judicial independence the problem of judges and lawyers and not the concern of society at large?

If law, rather than force, is supposed to be the basis of a civilised society, and if it defines the roles and responsibilities of individuals and institutions, how can the rule of law be strengthened when individuals and institutions keep transgressing the bounds determined by the law? When Governor-General Ghulam Mohammad and Chief Justice Mohammed Munir joined hands to shoot down the rule of law using the doctrine of necessity, they began the erosion of the integrity of institutions. No institution is now considered worthy of respect and protection.

In a mediaeval model of governance, the ruler is head of the executive, legislature and the judiciary, all rolled into his person.

The perpetuation of his rule is the most important guiding principle of public policy and to this end, no cost is considered too high to be paid by society — more so since the ruler is not accountable to the members of society and their interests do not matter much in such governance.

Of all the features that distinguish societies governed by laws from those ruled by men who follow their own whims, the most important is the distribution of the benefits of governance among members of the society.

In the former, people’s rights (benefits) are equal, while their responsibilities (costs) differ; in the latter, all are subjected to the same costs but some are more equal than others and enjoy rights and privileges (benefits) that are not allowed to the weaker sections of society.

During one of my several meetings with former Prime Minster Lee Kwan Yew of Singapore, I asked him to explain how he got his fellow citizens to respect the rule of law and renounce various social evils. Lee explained that whenever any law or rules were passed, the first persons that were subjected to abiding by these included himself, the cabinet ministers and corporate bosses. The message was thus underscored that there were no exceptions and that no one was above the law.

This culture of equal rights and equal treatment of all before the law was started soon after the independence of Singapore in 1959. Prime Minster Lee, for instance, would stand in line at the cinema to get a movie ticket. Fines and punishments for violations of law were first imposed upon the ruling party ministers and big bosses and publicised through the press for the information of all citizens.

In no time, Lee said, the message went loud and clear to everyone and he did not have much problem in establishing respect for the rule of law.

Stability without legitimacy is an oxymoron in governance. And we are familiar with political costs that society bears for violating fundamental principles of legitimacy.

In the process, like in the mediaeval times, no cost is considered too heavy to be paid by society in order for some to continue enjoying benefits, even if this is not legitimate.

We are also familiar with the economic costs of the unpredictability of the way that the law is interpreted and the extra costs imposed on the economy by arbitrary behaviour. Anyone familiar with the subject knows that Pakistan has been paying heavy penalties in international forums for several decisions — executive as well as judicial.

But far more fundamental are the social costs that we often do not take note of. Pause for a moment to take stock of what mediaeval governance — where the rule of men supersedes that of law — has been doing to Pakistani society over the decades.

Slowly but surely, it has been creating a sick and unhealthy society. Increasingly, it has been turning society into a community of courtiers where the most successful human attribute is sycophancy. It is about these social costs that Faiz wrote in his inimitable style when he complained of a culture where “koi na sar uthake chale” (no one should walk the streets with his head held high).

This culture is also inhospitable territory for nurturing rational and independent minds capable of addressing the new challenges being faced by state and society in Pakistan.

Mediaeval governance is recreating a mediaeval society in Pakistan. The latest symptom is the drama unfolding around the baton-wielding burqa-clad students of an Islamabad seminary. All over the world, a practical benefit of the rule of law — which we seldom seem to subscribe to — is the ability to resolve disagreements and disputes peacefully rather than by use of force.

The rule of law is a public good and its value and respect for it depend on its impartiality, predictability and on the equal treatment of all.

But when we take these features away, the law loses respect in the eyes of the people who see it as merely an instrument to enhance private interests and to provide legal cover to otherwise immoral and illegal acts.

With several honourable exceptions, the Supreme Court chiefs from Justices Munir to Anwarul Haq to Irshad Hassan have a lot of explaining to do to the people of Pakistan for making the law almost indistinguishable from politics and for repeatedly shooting down the rule of law with the doctrine of necessity.

Our legal culture and institutions, flowing from the separation of powers, have been built upon the acceptance of law as an exercise in self-understanding by society as a whole.

And the purpose of law is clearly to help society — by distinguishing the illegal from the legal — move in the direction of strengthening the values and institutions that it cherishes.Ultimately, every country in the modern world has benefited from living under the rule of law since the costs of continuing to live outside the law have been too heavy to bear. The “failed state” syndrome is not a measure of poverty or underdevelopment of countries but of their continuing inability to manage their human and physical resources in accordance with the internationally established norms of law and governance.

The issue of the Chief Justice has already grown bigger than that of an individual or institution. The leadership provided by the bar is refreshingly different from some political parties whose commitment to the rule of law has often been lacking.

To provide long-term benefits to society, the bar should ask all political parties to publicly commit to themselves to establishing a charter for the rule of law in the country whenever anyone of them comes to power.

On the other hand, with its contents already known through media reports, further foot-dragging over the reference against the Chief Justice is hurting the soul of the republic.

The sooner the reference is withdrawn the better for the development of a healthy and normal society and a law-abiding state in Pakistan.

The writer is a former head of Board of Investment and federal secretary.

http://www.dawn.com/2007/04/13/op.htm#2

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Yasser Chattha

The Right to Public Protest

By I. A. Rehman

THE establishment’s favourite method of dealing with any street agitation against its policies or actions is to deny the people their rights to assembly and protest, and to subject them to violence if they persist in exercising their basic freedoms. This has again been amply demonstrated during the current movement against the outrageous attack on the rights and dignity of the country’s Chief Justice.

When the lawyers started taking to the streets the Punjab police were unleashed to give a display of wanton savagery for which they have been known since the colonial period – not only in the subcontinent but also across large areas in Asia and Africa. Heads and limbs were broken and teargas was used in a spirit of abandon rarely witnessed even in our part of the troubled world. Journalists who were guilty only of performing their professional duties were similarly targeted.

The government’s attempts to terrorise the media (and indirectly the lawyers and the people in general) into submission reached their peak with the raid on the Islamabad office of a TV organisation by a police contingent in full uniform and equipped with officially supplied weapons. The realisation that the incident had been seen by TV watchers across the globe prompted an unusual show of remorse and rehabilitation of the anchor who had been ordered off the channel a day earlier. No such consideration was shown to the other victims of police brutality that are not needed by the regime for its image-building.

Scared into some semblance of sanity by adverse reaction to its resort to excessive force against lawyers, the administration modified its tactics. Instead of preventing lawyers from assembling and parading the thoroughfares, it embarked on plans to divide them and separate them from elements outside the legal fraternity, especially political parties. There have been reports from a few district towns, and even provincial capitals, of some lawyers’ bid to dissociate themselves from the mainstream.

An attempt to engineer an exchange of brickbats between lawyers and political workers in Islamabad was followed by an incredible clash between black-jackets and media professionals in Karachi.

Meanwhile, the establishment’s propaganda batteries are being relentlessly used to demonise the protesters. The stock argument is that they are politicising a legal/constitutional issue that can only be agitated in a court or a tribunal enjoying the appearance of a court. The untenability of this specious plea can easily be proved.

Instances when regimes of various kinds have sought to justify political excesses under legal subterfuge are legion. The colonial rulers strove for decades to use their legal apparatus to prove that they punished the seekers of freedom for breaking the law and not for their views, and the people had no business to protest against the killing or detention of their popular leaders. General Ziaul Haq did not succeed in convincing anybody that his decision to liquidate Bhutto was not so much a political choice as a legal obligation. Washington has not been able to persuade the world that the atrocities being committed at Guantanamo Bay cannot be ‘politicised’.

Anybody who says in Pakistan, of all the countries in the world, that constitutional issues cannot be treated as political matters betrays not only a corrupted mind but also ignorance of history. The Quaid-i-Azam consistently maintained that the demand for Pakistan grew out of failure to evolve a constitutional formula for India that satisfied the Muslims. In his address of August 11, 1947 too he described the partition as the only way to solve the subcontinent’s constitutional problem. In other words, the Pakistan movement could be described as “politicisation” of a constitutional issue.

Besides, the Quaid did not rule out street action to realise constitutional objectives. It is possible to argue that his break with Gandhi on the latter’s decision to confront the alien rulers was a matter of disagreement on tactics and the prohibitive cost and not one of principle. When by 1946 he was confident of Muslim League’s strength he did not hesitate to call for direct action.

That extra-constitutional regimes often try to protect themselves by denouncing politics as a law and order matter and as something unnecessary, wasteful and even treacherous is known. The truth, however, is that each and every public grievance, be it the lack of drinking water or unemployment or high power tariff or involuntary disappearance or the use of a long knife against the head of the judiciary, is political in nature and no law or pretext can deny the people their right to secure their due through any means available to them.

More often than not the choice of agitation in the street is forced upon the people by their rulers who block all other routes to protest for a democratic change.

It is clearly time the first principle of modern, civilised governance was accepted by Pakistan’s oligarchs -- that the people have an inalienable right to challenge the edicts of their surrogates in authority and to punish the incorrigible by removing them. As a corollary to this principle, public protest, within the four walls of a bungalow or in the open, simply amounts to the exercise of a basic human right to participate in the country’s governance, directly when indirect means do not bear fruit.

Public protest against government policies or actions usually either shrouds a demand to undo something that is perceived to be contrary to people’s interest or a plea for some action the people consider necessary to secure relief in a hardship situation or to meet a pressing need. Two factors commend mass agitation through public rallies, processions and hartal to our people. First, it has been an essential part of the people’s political culture since the time they started challenging the colonial power in the subcontinent. It is a tradition they have every reason to be proud of.

Secondly, a public demonstration in the open gives the cause provoking it a face and a personality that other forms of expressing citizens’ demands, such as petitions, memoranda, demands through media or courts, cannot grant it. A public rally not only reveals the identity of the protesters but also the number affected in the given territorial context and the intensity of their feelings. Authorities that claim to govern by popular consensus should welcome public agitations as they offer them possibilities of correcting their policies.

It is true that sometimes mob power can be mobilised in support of demands society cannot afford to concede. However, just as ordinary people cannot distinguish good candidates for elective offices from bad coins unless a tradition of free and fair polls has been set over a long period, the masses cannot learn to reject unhealthy calls without enjoying the freedom to congregate in support of issues of public interest, and that too over a long period.

Much confusion has been caused by the policy of tolerating only processions and rallies staged to hail the rulers of the day and condemning most, if not all, other assemblies as subversive of good order.

The theory of blocking public rallies was developed in the colonial period on the premise that putting pressure on the government established by law was an offence. The post-independence authorities have used this theory far beyond its legitimate application. Coup-makers have sought to crush public protest as an activity designed to undermine authority established by law although they have had less claim to this status than even the colonial masters.

For many years now all public protests have been prohibited. At one stage the Supreme Court made a modest move to examine this bar to the people’s fundamental rights but the matter was not pursued to any conclusion.

The most commonly used tactic to ban public rallies is the abuse of Sec. 144 of the Cr.P.C. According to the text drafted by the British authors of the Code of Criminal Procedure, the district authorities could ban the assembly of more than four persons (how five made an unlawful assembly was never known). But this power was to be used only when a situation demanded and an order under 144 could not be valid for more than 14 days. It was left to our present-day rulers to keep large populations, especially in big cities, permanently under 144 although this is not only unlawful but also violative of the people’s fundamental right to peaceful assembly.

The second common tactic to prevent the people from registering their protest against a regime is that of detaining leaders and activists concerned on the eve of protest. Since no law holds criticism of any government to be a crime, all dissent is defined as anti-state activity and preventive detention is justified. It can be said without any fear of contradiction that most of such arrests, if not all, constitute criminal abuse of authority. Some time ago the Lahore High Court had to rule that raising anti-government slogans did not warrant the arrest of political activists under the Anti-terrorism Act.

The third method to interfere with the people’s right to assemble and protest is the use of plainclothed musclemen from security forces to beat up and terrorise the protesters. In this form of cussedness Pakistan’s so-called law-enforcers have surpassed their colonial role models. No head is safe from their unruly hands, not even that of the country’s Chief Justice. They are free to use their dirty hands to probe women protesters’ bodies and rough them up as they wish. No woman is safe – neither the head of the Human Rights Commission of Pakistan nor the president of a widely respected association of Pakistani doctors in the US.

The neoliberal apologists of market economy have started criticising mass action, especially hartals, on the ground that poor vendors are adversely affected. They should welcome Pakistan business people’s opposition to rallies in shopping avenues. Time was when traders had a stake in liberty and democracy. It may not be impossible for them to realise that when demonstrators who belong mostly to disadvantaged sections of society call for democracy and justice, they fight for a change that would bring themselves smaller rewards than traders. Subject to undertakings against destruction of property, no part of any city should be a ‘no go area’ for public processions / rallies.

Whatever the result of their present agitation, the people expect of the country’s jurists and lawyers a determined effort to rid them of the myth that opposition to government is always an attack on the state and also to get Sec. 144 repealed or at least radically revised and to end the use of plain-clothed goons to attack any citizen’s inviolable person and dignity. This should also be high on the people’s demands on political parties. They must learn to respect the citizen whose vote alone will help them win the right to be lawful and legitimate rulers of this magnificent land of ours.
http://www.dawn.com/2007/04/19/op.htm#1

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Yasser Chattha

Law, Politics and Governance

By Syed Mohibullah Shah

THE rule of law has been lying low for so long that we have forgotten that in civilised societies, both politics and governance have to be conducted according to the law and not above and beyond it. The carnage in Karachi on May 12 has further exposed the dangers of conducting politics and governance without respecting the bounds of law.

Law is a human practice and has to be defined, understood, interpreted and applied not just by lawyers and judges within the courtrooms. Human practices according to the law have also to be visible in the conduct of all actors, especially in that of ruling members of political and official establishments, including the makers of the law. It is only then that respect for the law can spread out to citizens at large.

Gone are the mediaeval days of rulers claiming the obedience of citizens by pretending that the law to be followed was the commands of the sovereign. For law to claim legitimacy and obedience from citizens in the contemporary world, it must incorporate and exhibit five features which are defined as following:

(1) Moral content: by reflecting values cherished by a broad section of society.

(2) Welfare content: being the instrument for the greatest good of the greatest number.

(3) Neutrality and impartiality: being blind to colour, creed, origin, sect and ethnicity.

(4) Consistency: being the same for all people at all times.

(5) Transparency: being open to all in its making, interpretation and application.

It is these values that count as justification for the authority of law and obedience to it. These characteristics also provide the distinction between a legal system and the commands of a gunman: both the legal system and the gunman ask for compliance, but only the former represents its claims as legitimate and justified.

Repeated aberrations in the implementation of the law have been extracting a heavy price from society in the public policy domain. Economically, the failure of the rule of law leads to sub-optimal decision-making and misallocation of national resources. In the political arena, as the law is forced on the back-foot, violence fills the void and influences human practices. Socially, as the law loses its moral authority, sectarian, ethnic, parochial and other considerations take larger than life roles in the nation’s body politic.

Economic development may or may nor have been trickling down to the lower strata of society but our long tradition of aberrations certainly has and is taking root in the culture of politics and governance spreading across Pakistan.

The constitution is the supreme law of the land and defines the guiding principles of the governance of a sovereign state. But even before independence, when this part of the subcontinent was a colony without a constitution, it was a much more law-abiding society. From traffic laws to municipal laws, from criminal laws to laws on food adulteration, people obeyed them all, especially because they saw their superiors in authority and status abiding by these.

But it is difficult to develop a culture of obedience to less superior laws in societies where superior laws are themselves not respected. Seeing repeated deviations from superior laws by the more powerful, the smaller fries of the state and society also feel free to flout the less superior laws of the land.

That is also the argument being advanced by the masters of the Hafsa brigade in Islamabad. By all accounts, their strategy seems far more successful than, for instance, that of the peaceful ladies of the Women’s Action Forum who got thrashed in Lahore recently for doing for much less.

Have we then been nurturing a culture where obedience to laws is synonymous with weakness — where only the weak and the meek are left to be law-abiding citizens who can neither bully nor buy their way out of law?

We should also disabuse ourselves from another habit which has crept into our polity. For so long have national affairs been conducted by governments bypassing the law that we have forgotten it is always the writ of law that is sought to be enforced by governments and not their own writ. Governments have no mandate other than to enforce the writ of law in their jurisdiction and not the wishes of individual players in their ranks. Without the rule of law guiding them, politics and governance often get reduced to exercises in self-perpetuation as was witnessed in Karachi.

By the way, since when has anybody, including MNAs and MPAs, acquired the right to deny freedom of speech and movement to other citizens — much less to the Chief Justice of Pakistan? It was this attitude and the measures to enforce it with ‘non-functional’ law-enforcement machinery that ushered in the mayhem of May 12.

Sick with manipulations and shenanigans, people have been standing in rallies for hours during hot summer days and nights to record their anger and protests, not only in favour of the CJP but to also urge that this government should conduct politics and governance, according to the law and respect judicial independence.

The fact that they did not come out in similar numbers when elected governments and parliaments were overthrown also tells of their disillusionment with unfulfilled promises of the rule of law, with equal opportunities for all and managing national resources as a trust for their wellbeing, free from cronyism and corruption.

In the upcoming months, it is incumbent on everyone — more so the people in authority — to let the rule of law and judicial independence guide the politics and governance of the country so that the ship of state can safely navigate through the stormy seas ahead. Both internal and external forces would be keeping a vigil to see if the rules of the game are being observed.

Pakistanis must rid themselves of models of medieval governance. Neither men on horseback who want “unity of command”’ over everything in the domain nor civilian leaders pretending to be ‘ameerul momineen’ and lording over all things temporal can deliver them from crises.

They must realise that governance is conducted by ordinary mortals who are agents of the people and accountable to them through periodic elections and answerable to the laws of land, not by anyone pretending to be guided by a divine mission or possessing supernatural attributes.

That is where the significance of the lawyers’ movement lies and the need for a strong and independent judiciary to hold politics and governance accountable to the law.

Will they deliver, be hijacked, undermined or overwhelmed? The next few months will tell. But the movement has captured the imagination of the masses because in their heart of hearts they feel that it is trying to finish the incomplete agenda of the struggle for the independence of Pakistan, which must become a republic of the law if it wants to become a peaceful and prosperous republic of the people.

The writer is a former head of Board of Investment and federal secretary.
smshah@alum.mit.edu
http://www.dawn.com/2007/05/26/ed.htm#4

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Yasser Chattha

Muslim States & Democracy
Introductory note: Evolutionary stages of democracy and Islamic countries
~ Secularism or moderation for Islamic countries
What model of democracy suits the Islamic countries.
…Yasser.
By Syed Sharfuddin

A LARGE number of countries in the world like being called democracies on the basis of holding periodic elections in the presence of international observers and on the laws that they enact through their functional cabinets or parliaments. Many also claim to be governed by the rule of law, stating that they are guided by their constitutions in keeping their social contract and taking important public decisions.

Many resources are committed by the US in developing democracy promotion strategies. However, the experience of EU accession agreements with the new applicants setting up clear targets for membership suggests that conditionality may be more effective in promoting democracy than mere incentives. There are also periodic reports which “name and shame” countries on the basis of democratic yardsticks such as political rights and civil liberties, human rights violations, corruption and on meeting international goals.What is, however, needed now is investment in resources and tools for building the architecture of democracy in countries which are democracies only in name. This is a gigantic task. The design of democracy requires that in order to be effective, several of its components should be working efficiently and in accordance with international treaties, non-binding declarations and political commitments of national leaders.

These components consist of a modern constitution; separation of powers with proper checks and balances; an independent judiciary; electoral and political processes that deliver representative and responsible government; instruments of accountability, public scrutiny and transparency; the contribution made by women in politics and conflict-resolution; the comfort level of minorities and other marginal groups in the political system; protection of human rights and freedom of assembly, belief and expression; and devolution of powers.

The weakening of any of these important components of democracy can endanger the very foundations of democracy and it would take years to restore trust and millions of dollars to rebuild institutions. Also, when elected governments become complacent and self-serving, they become corrupt and devoid of imagination to reform.

Experience suggests that the design and capacity for democratic institutions cannot be imported. The local population must be consulted fully in any reforms agenda and must own the changes before constitutions can be written or improved in a country. Afghanistan is a permanent example of why things have never gone right with this country. For most part of their history, the Afghan people remained strangers to the policies of the government in Kabul which were framed with outside consultation without involving the people in the discussions on the nature and composition of their governance.

It is, therefore, unfair to assume that Hamas, having won the elections in Palestine would behave like its counterpart rightwing political party in Israel or that a monarchy like Swaziland which has welcomed democracy and adopted its first indigenous constitution limiting the powers of the king, could now be compared to a constitutional monarchy in Europe which has gone through a long democratic transition from monarchy to liberal democracy for almost a century.

Should these suspect regimes be given the benefit of doubt and room for engagement, or should they be thrown out and replaced by their western educated counterparts who have been in exile abroad, and who may be very articulate and good-intentioned, but who may not have popular support in their home countries to pursue long-term reforms?

This brings us to the point of where Muslim countries stand in regard to the western democratic model. While the former group of countries may still exhibit signs of authoritarianism, countries in the latter category are in the final stages of liberal democracy where the focus is entirely on the freedom of the individual.

A further stage in the evolution of democracy is secular democracy where the emphasis is on the separation of state from religion in all aspects of social and political issues, such as the constitution, administration, legislation, policymaking and culture.

Only two countries would find trouble with this definition; namely Pakistan and Israel because both were founded in the name of religion. Over the last 60 odd years there have been robust debates in both these countries on separating religion from politics.

The traditionalists in these countries take the view that this is tantamount to challenging their very reason for existence. Others, who are also in a majority, take a more general view and regard their independence as a result of historical forces which is no longer relevant in a modern world. The emerging social contract in both these countries today favours separation of state from religion.

Secular democracies have been very popular in pluralistic and multi-ethnic societies such as India and South Africa where unity is achieved by treating all citizens equally and keeping religion out of public discourse. In secular societies, the tyranny of the majority is balanced by the rights of the minorities protected by law and efficient justice. In this type of democracy, justice plays a central role. It guarantees a stable and just society despite divisions created by religious, philosophic and moral doctrines.

Despite its open view, secular democracy is not liberal democracy which is the next step in democracy’s higher evolution. In liberal democracies, top priority is given to individual liberty over all other human endeavours such as equality, social justice, democracy, stability and order.

Except for western democracies, many emerging democracies are not aware of what liberalism means to their societies. They have not yet faced issues such as legal protection for same-sex marriages, right to euthanasia, etc. In fact, this horizon is further expanding with political scientists talking about the state-plus vision of global democracy.

The question that is often asked is how the promotion and building of democracy can be successful in the Muslim world which has been slow to implement reforms. Many traditional Muslim countries which are now experimenting with democracy find it hard to feed the western theories of democracy to their traditional populations beyond deliberative democracy. This is because secular democracy still raises doubts in the minds of many Muslims as to its implications for their ideology and family traditions.

Irrespective of the clear definition of secularism, which is not to be confused with communism, these countries suspect that it is a way of bringing a godless culture into their lives through the backdoor.

It is also inconceivable that if some Muslim countries indeed embrace secularism as their political philosophy, such as Turkey, they would find it easy to move to liberal democracy in the next stage of their democratic evolution. What is, therefore, required is a new marker on the horizontal line of democracy’s evolution for Muslim states and its recognition by the international community as an important stage in their transition.Pakistan has called this intermediate stage “enlightened moderation”. Some others call it “decent democracy’.

Malaysia, for instance, would argue that in the Muslim world, the aim should be to replace illiberal democracies or authoritarian regimes not with secular or liberal democracies but with decent democracies where human rights, democratic and institutional reforms and constitutions correspond to the core values of the local population and sit well with the social makeup of their respective communities.

The model of decent democracy also sets aside endless debates about whether Islam is compatible with democracy or is democracy compatible with Islam. Instead of highlighting the definition of sovereignty in Islam, the linkage between political Islam and religious Islam or the limits placed on man as the creation of God, decent democracy lays emphasis on those positive aspects where there is no difference of opinion between the West and Islam.

These common values highlight developing democratic institutions and processes; good and honest governance; effective social and economic development; respect for all faiths, cultures and human rights; legal, administrative, political and structural reforms; development of free media and independent civil society; participation of women in politics, both in numbers and the quality of their input; and an active engagement with the external actors in the western world who are perceived not as enemies but as partners.

In addition to that, some way should be found to gainfully utilise the experience of very senior and experienced leaders in the Muslim world whose continuation as kings or heads of state or government may no longer be fashionable or popular in their respective countries, but who remain a valuable source of political advice, guidance and inspiration for the younger leadership.

Regrettably, apart from a few selective efforts, no global attempt has been made to tap this important resource and encourage more such leaders who do not see an active political future for themselves in their countries to retire early and play a regional and global role as mediators, special envoys and guardian angels of peace and democracy worldwide.

Perhaps the United Nations can take the first step in setting up a global institution which keeps former presidents and prime ministers occupied in lecture tours and resource-building efforts to make it worthwhile for them to retire and give democracy a chance.

The author is a former special adviser for political affairs in the Commonwealth Secretariat, London.
http://www.dawn.com/2007/05/25/op.htm

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Yasser Chattha

Are we Becoming a Banana Republic?

Introductory note: This is an edited version of the original article
~ indicators of identifying a banana republic
~What impact for it can have on international security scene.
…Yasser

By Dr Tariq Rahman

In a banana republic, the state is not run according to the constitution. We have had three constitutions none of which survived the opportunists. Indeed, the fear of elections promised by the 1956 constitution made Iskander Mirza declare martial law. But he could not control the genie of the army that he had so selfishly and foolishly allowed to escape from the bottle.

Ayub Khan then perpetuated himself for a decade. But when he was forced to leave he violated his own constitution (of 1962), handing over power to the army chief.

Zulfikar Ali Bhutto made the 1973 Constitution but the amendments to it almost did away with its spirit. Then Ziaul Haq, seizing power when Bhutto was about to reach an agreement with the opposition, mutilated the Constitution and made a mockery of it. And now the same mutilated Constitution is being made to support military rule again.

The second characteristic of a banana state is that the rule of law does not work. Instead, the police, army, paramilitary forces or intelligence agencies become very powerful and nearly autonomous. This happens in highly centralised totalitarian dictatorships too. In both kinds of states the first casualty is the truth; the second is freedom and the third is moral courage.

Journalists and academics stop speaking the truth, and sycophancy becomes the order of the day. The rulers become more cruel since nobody dares to oppose them any longer. Academic originality, research, innovation and even art suffer because these are the products of free minds and people who can think on their own. Such people go into exile or are liquidated and silenced. Mediocrity rules and the country becomes stagnant and backward-looking.

Yet another mark of a banana state is that its rulers are afraid of a free and bold press. The press is the major antidote or corrective to the follies and aberrations of society. It tells us about events — including gun battles — at the risk of the lives of brave young men and women who expose themselves to the wrath of the state and its supporters among intelligence agencies, political parties, etc.

A major indicator of ‘bananisation’ is the stifling of the press. In this crisis alone we have seen how two TV channels were attacked and almost every other day the press is threatened and warned. Another indicator is unauthorised, illegal acts such as the murder of the additional registrar of the Supreme Court and the arrest and incarceration of a DIG from Sindh. If the rule of law comes to an end, if religious and ethnic groups hold ordinary people hostage, if the press is intimidated and gagged, then what we have is a banana republic.

There are many obscure African and Latin American countries which are banana republics. Nobody seems to care about them except, of course, their own citizens assuming they can still think critically. But Pakistan’s case is different. We are an important state which should not be destabilised if the whole of South Asia is not to be dangerously destabilised.

Moreover, we are a nuclear state. An unstable Pakistan with such extremist contenders for power as militant religious groups and an ethnically charged ruling elite can be very threatening. We know that the United States perceives threat from all unstable countries — especially if they are Muslim — so we should be very careful not to give the impression of not being not in control to the rest of the world. This is so important that it had to be written. It is, in the words of Hermann Kahn, which he used in another context, the ‘thinking of the unthinkable’.

In short, the situation is so alarming that one is brought to the level of pleading, appealing and wishing to those who are in charge to see reason and make amends. If we are to survive we have to think seriously about this country. It will not be forever that we can play with the fortunes of this land of 160 million because banana states cannot even be played with: they hold their populations hostage; they play with their people.

http://www.dawn.com/2007/05/22/op.htm#2

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Yasser Chattha