A new system?

The virtue of a constitutional democracy rests in its promise to make governance subservient to the will of the people. By extension, the societal acceptance of a constitutional parliamentary democracy—like the one we have in Pakistan—rests on three basic assumptions: 1) that the ‘collective will’ of the people, exercised through their chosen representatives, will legislate for the betterment of the citizenry; 2) that the executive, chosen primarily from the elected representatives, will enact policies that lessen the burdens of life over people; and 3) that there will be a system of justice which, efficiently, punishes the wicked and recompenses the wronged.
Pakistan, much like other developing nations, imported a system of constitutional parliamentary democracy, some fifty years back. And, ironically, since then, the fundamental assumptions of democracy have eluded us in a manner that has left our constitutional system crippled, and our society caustic.
As a result, at this watershed moment in our polity, we need to review (deliberately) to assess whether it has fulfilled its conceptual promise. Or whether, in light of the failures of the existing governance structure, the people of Pakistan need to conceive of a different democratic ‘system’, which is more in touch with its cultural and political realities.
Starting with the first assumption of democracy—that the ‘will of the people’ will legislate for the betterment of the people. In our constitutional structure, the will of the people is reflected in the Parliament (National, Provincial, and local). The assumption of democratic theory is that the chosen representatives of the people will exercise their legislative power for the benefit of the constituents that elected them. Without this assumption, the entire framework of democracy cripples. It is the fundamental nexus of democracy—one that connects the State to its citizens. So, do the elected representatives in Pakistan spend their untiring effort towards legislating public welfare? Have we become aflush with legislative proposals, from all sides of the isle, on how to fix the educational and healthcare system in Pakistan? Each political party promises electoral reforms during the campaign. Have any of them (including PTI) fulfilled even a fraction of this promise?
The legislature, these days—more than any other place in Pakistan—is the sight of a crime scene, where people are hurling abuses, sometimes chairs, at each other. Does watching the assembly proceedings inspire any sane-minded person to participate in it? Is there any effort, from the Parliamentarians, to raise (in the Parliament) relevant concerns of their respective constituents? In fact, other than Ordinances and ancillary amendments, over the past five years our National Assembly has passed no major legislation, through public debate, which improves the structural foundations of our governance matrix. During this time, the only major legislation, passed by the National Assembly, affecting the structure of our democracy, was the Elections Act, 2017, in which the Parliamentarians (unanimously) approved that they no longer need to declare their assets in their nomination form. That is, till the Supreme Court declared it unconstitutional.
Subtracting further from the legitimacy of the Parliament, the PTI parliamentarians have resigned en bloc. In the circumstances, since the largest party in our National Assembly is out on the streets now, does a legislature hold any?
Next, the executive: can anyone argue (with a straight face) that the executive service-delivery mechanism of our State functions without fear or favour? Does the thaana, despite all provisions of the relevant police laws, treat Allah Ditta at par with the local political leader? Does the Patwaar? Does the DHQ hospital? Or the District Commissioner? Is public education really designed to help Allah Ditta’s kids compete with children from elite private schools in the dynamic modern world? Does the ‘system’ really do all it can for the street children? Or the homeless? Or the thousands of women and children who are sexually assaulted each year? Does our ‘system’ care about the 200 children in Thar, who died from lack of food and water last year? Does it provide efficacious institutional mechanisms to protect the Hazaras of Quetta, or the Christians of Lahore?
Finally, with regards to the democratic assumption concerning judiciary, there can be little cavil with the proposition that our judicial system is failing its constitutional promise, and requires restructuring. Respectfully, that is. In its last report, Transparency International Pakistan declared our judicial to be the second most ‘corrupt’ institution of the country!
Of course, there are good judges, and valuable jurisprudence. But, on the whole, is the ‘system’ really working to provide justice to Allah Ditta? Or is it, instead, designed in a manner that tips the scale in favour of the powerful and wealthy? Can we say that the judicial system is working, as it should, when Allah Ditta languishes in jail for decades, while Hamza Shehbaz’s bail is heard over the weekend? Have the courts asked the State to provide ‘guarantee’ for the life of any incarcerated patient, other than Nawaz Sharif? Is the ‘system’ working when Asif Zardari could not be charge-sheeted till November 2020, in a case that was registered back in 1994? Can we say that our courts provide justice when Majeed Achakzai (an MPA from Balochistan) was acquitted after running over a traffic warden in Quetta in broad daylight? Oh, by the way, despite the CCTV footage showing the entire incident, Majeed Achakzai was acquitted for ‘lack of evidence’! Has the judicial system worked for the victims of Model Town massacre when, despite a lapse of seven years, not a single conviction has been handed down? Did it work for the people of Baldia Town Factory fire? Is it working for those who lived under Uzair Baloch’s terror regime in Liyari? Did it work for those who were killed during lawyers’ attack on the Punjab Institute of Cardiology? And even as thousands of ‘regular’ litigants languish for decades for a decision in their cases, the courts may open at midnight, on a Saturday, to hear select petitions.
In recent years—and especially over the past few months—it has become clear this ‘system’ is not working. This is not to say that democracy doesn’t work. Just that this particular model of it, is not fulfilling the promise of democracy.
Borrowed wisdom from our western friends has—through a systematic campaign stretched over the past two hundred years—convinced our people that a constitutional parliamentary democracy is the best (only?) system of governance that is worthy of the modern comity of nations. Much like all the civilisations before us, who were convinced that their system was the best that humanity had ever seen.
It is time for Pakistan to think of a new system. In fact, this is what the coming election (whenever it happens) should be about. That the new government, with the mandate of the people, will make certain fundamental changes to our democratic paradigm. With a hope that the new system, or amended version of this one, will learn from the mistakes of our past, and make progress towards redeeming the promise of democracy.

The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School. He can be contacted at saad@post.harvard.edu. Follow him on Twitter