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Legitimizing the Illegitimate. By Muhammad Iqbal Malik September 2008. The Crisis of Legitimacy. Analogy. A gangster enters a peaceful community and terrorizes the people with his sophisticated weaponry and show of power He ransacks homes, rapes girls and plunders shops etc.
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Legitimizing the Illegitimate By Muhammad Iqbal Malik September 2008
Analogy • A gangster enters a peaceful community and terrorizes the people with his sophisticated weaponry and show of power • He ransacks homes, rapes girls and plunders shops etc. • Due to the “peaceful” and docile nature of the people, he almost meets no resistance • He meets the elders of the community, gets rid of the hard nuts and co-opts the corrupt or weak • The residual members of the community elders hold a grand meeting to deliberate on the problem and pass the following resolution:
Resolution • Resolved that in view of the power enjoyed by the armed intruder, the vulnerability of the unarmed community, the risks involved in possible resistance, and a general absence of will in people to offer personal sacrifice for the good of the community, the elders hereby declare, in the larger interests of the community, the intruder to be the de facto Chief of the community • Resolved that all actions of the Chief to date are ratified as being circumstantially justified and lawful • Resolved that all bodies, institutions and counsels of the community, shall be subservient to the Chief
Resolution • Resolved that in order to maintain order in the society, the Chief shall enjoy the rightful authority to discard or modify any existing beliefs, values and norms of the community and to shape a new culture in the best interests of the community • Resolved that the will of the Chief shall be the Supreme Law of the community • Resolved that all actions of the Chief, past or future, shall be deemed as representing the will of the people • Resolved that submission to the will of the Chief shall be binding on all groups, bodies, and individuals
Questions on Legitimization • Can such deliberations ever be deemed rightful or lawful? • Can an absolute and universally accepted wrong become right through a simple resolution? • Can mutilation of a social order by a tyrant be legalized by a bunch of corrupt individuals and become The Law? • Can social values be so conveniently altered by the free will of an individual? • Can rape be legitimized by force? Can might be proved right? • What is the life span of such legitimization? Perpetual?
Questions on Delegitimization • Should the above legitimization be automatically reversed upon termination of the tenure of the intruder? • Should a reversal of the “legal” status of the gangster after his death, exit or termination of office be considered ethical after initial “legalization”? • Or should the resolution of the residual and corrupt community elders be honoured through history • Should a reversal imply a simple restoration of the normal order, as simple as the intrusion? Or should it be complex, requiring a fresh, complete law making, community formulating or culture formation process? • Do the victims enjoy the right to redressal or are their rights rendered irrelevant by a simple resolution
Dictatorship and the Crisis of Legitimacy • Pakistan has been repeatedly facing a legitimacy crisis for the past 50 years, as a product of dictatorship • The crises share a common pattern of events and characteristics • Each instance ends in: • A military coup sanctioned legitimate and rightful by the superior courts through the doctrine of necessity • Abrogation of constitution certified as circumstantially legal • A dictatorial law and constitution affirmed as the rightful law of the land
Why Dictators Require Legitimacy • Legitimacy reduces resistance and the cost of dictatorship. Without a legitimate status, a dictator could end up paying a cost that he may not afford • It helps dictators, at least in perception, assuming a status in history, as hero or saviour rather than a villain • A legal status is deemed necessary to avert possible repercussions of Article 6 of the Constitution, which states that "Any person who abrogates or attempts or conspires to abrogate, subverts or attempts or conspires to subvert the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason".
Why Dictators Require Legitimacy • And of course, the penalty for high treason could be life imprisonment, or even death • Dictators relish power and wealth. Ironically, in the third world context, both mainly come not from within but from outside in the form of financial and military aid from the civilized world. For the western capitals, legitimacy is an essential democratic value, without which flow of funds and military assistance cannot be conceived for a military dictator. Thus legitimacy is often more of a foreign demand than a local consideration.
Why Dictators Require Legitimacy • It is interesting to note that the kind and value of funds and military assistance sanctioned by the west to military dictators by far exceeds the assistance provided to democratic governments in Pakistan • The rationale for this love affair between the west and military dictators can be well understood by examining the services rendered by the Pakistan military for the US, in the past 5 decades in general and last 3 decades in particular • Simply put, it’s a win-win proposition
The Relationship Between Military Dictators and the Constitution • It is legally impossible to have military rule and a democratic constitution co-exist – one must go • According to the constitution of Pakistan, the military has no business in the political affairs of the country. It is subservient to the political leadership and cannot assume authority over democratic institutions • It belongs to the borders and not to the center of statesmanship • Thus constitutionally, military rule cannot be legal
The Relationship Between Military Dictators and the Constitution • To overcome the constitutional crisis, dictators must promulgate their own constitution • This is done for the following reasons: • To undo the mutually exclusive relationship between the constitution and military rule through tailor made provisions • To gag media, people, and other organs of the state to curb all forms of possible resistance against the illegal regime • To give a false sense of order to a chaotic situation • To substitute the “corrupt” political system preceding the coup with a new and cleaner system. This assertion forms the heart of the legitimization process
Structure vs. the Spirit of The Constitution • Letter and spirit are universal legal concepts • Dictators are generally apt at legalizing their scheme by developing alternative constitutional and legal structures • Every letter of their constitutional arrangement however, inherently lacks the spirit of any democratic constitution or legal framework • This very fact is sufficient to render all dictatorial schemes and measures as absolutely unconstitutional and illegal
Thrusting Constitution upon People • The preamble of the constitution of Pakistan outlines a very interesting characteristic of the constitution itself – the constitution is not thrust upon people. Rather it is adopted by the free will of the people themselves. This is the true spirit of democracy which cannot be preserved by any military or dictatorial rule • The extract of the preamble is presented in the next slide to highlight this very important constitutional concept
Extract from the Preamble of the Constitution of Pakistan • …it is the will of the people of Pakistan to establish an order • …shall be guaranteed fundamental rights • …independence of the judiciary shall be fully secured • Now, therefore, we, the people of Pakistan... Faithful to the declaration made by the Founder of Pakistan…, that Pakistan would be a democratic State • Dedicated to the preservation of democracy achieved by the unremitting struggle of the people against oppression and tyranny;
Extract from the Preamble of the Constitution of Pakistan • Do hereby, through our representatives in the National Assembly, adopt, enact and give to ourselves, this Constitution
Individual vs. Institutional Act: A Naive Misconception • The Pakistan Army is widely held as a sacred institution, as holy as the sacred cow • As part of the image building exercise, in a post-dictatorship period, a general is often singled out and blamed entirely for derailing democracy • Military as an institution, is always carefully guarded against any criticism of corruption • It is however inconceivable that an institution comprising hundreds and thousands of armed men can be hijacked by one man, that too, repeatedly
Individual vs. Institutional Act: A Naive Misconception • The Army, as an institution, must review the processes and norms that make it so convenient for a servant of the state to suddenly emerge as the State • After all, all forms of corruption and immorality are dwarfed by repeated attacks on democratic institutions, state organs and civil rights • It is undoubtedly the most heinous crime against society in the modern world • The military must acknowledge responsibility for providing all out support to despots, in absolute violation of its constitutional and moral obligations
Individual vs. Institutional Act: A Naive Misconception • Considering the historic military interventions and colossal damage caused to democracy, state organs, social institutions and national assets, the purpose of the Army as an institution, and its posting on the borders becomes rather vague • And considering the notorious proportion of budgetary allocations consumed by the institution, the people of Pakistan would be justified to ask… for how long???
Pillars of Dictatorship • The structure of military dictatorship is founded on a few key pillars without which the authoritarian rule loses viability or sustainability • It is important to note a key difference in the character of military rule in Pakistan and elsewhere • Here dictatorship, owing mainly to the socio-cultural factors, and to some extent, the geo-strategic stakes, is often not as despotic, ruthless, blatant and naked • This softness is a circumstantial necessity not luxury for a relatively long lasting authoritarian rule
Pillars of Dictatorship • Thus the success of a dictator, at least in part, depends on his ability to portray himself as honest, generous, just, sincere and a true patriot • The tact to project oneself as a selfless leader, and risk taker in the best of national interests is a vital competency in the repertoire of a dictator • The above disguise helps create ambiguity and confusion in the minds of the masses about the motives of the coup, winning “support” of at least some segments of the society, and thus setting the stage for the legitimization process
The Hidden Cost • Considering the political, social, economic, cultural and institutional costs, overthrowing a democratic government howsoever corrupt or unpopular is a mega crime • And if that becomes a norm instead of an exception, as in the case of Pakistan, the damage is incalculable • It has the potential to alter the underlying values, beliefs and assumptions of a society, leading the people to acquire negative attitudes and behaviours with poisonous consequences
The Hidden Cost • Successive failures lead to learnt helplessness • And repeated wins by the corrupt, renews their confidence and energy, paving way for their next grand design or malicious adventure • It builds the capacity to do evil and dispirits the good • In the long run, it lowers the level of resistance and makes the next move by a prospective dictator more viable and cost effective
Partners in Crime • As described earlier, dictatorship is supported by a few pillars, some of which play a more active role in legitimizing authoritarian rule • These include: • Corrupt or weak judges and lawyers • Corrupt politicians or poor leaders • Foreign powers
Partners in Crime: Judges • The military has all the might but no right to rule 160 million people • This right is primarily awarded by the judiciary • How it works? • Get rid of the incorruptible judges, forcefully and illegally, who are likely to take a rightful stand against a mighty power, the military • Threaten, blackmail or bribe those who may not support authoritarian rule if given a free choice • Make a deal with those who are in for a deal • Shuffle the judicial hierarchy to have the right person for the right job
Partners in Crime: Lawyers • If the quality of human resources is determined by the price tag one carries, then the top lawyers in Pakistan have played a fundamental role in legitimizing dictators • They are equal partners in crime against society. Their genius drafts the “legal” orders, constitutional frameworks and emergency declarations that mutilate every facet of the social order and make it lawful for the dictators to treat the citizenry as hordes of sheep and cattle
Partners in Crime: Lawyers • Like vultures, they prey on dead and hopeless constitutional and legal loopholes • They walk triumphant when millions mourn in absolute disbelief, upon their “legal” victories in the already corrupted and maimed courts • But their accomplishment is more of a reflection of the tattered legal and social system where the letter shamelessly triumphs over the spirit
Partners in Crime: Politicians • Democracy is not a luxury but integral to the survival of Pakistan as a nation • Thus it is not surprising that each and every dictator of Pakistan has played as the champion of democracy • Sooner or later, the country has to move back to the democratic track • But considering the gravity of the act of subversion, the transition is not that simple for a dictator • A lapse here or there could possibly lead to life imprisonment or death sentence
Partners in Crime: Politicians • The dictator has to perform institutional cleansing in the political system similar to the one done with the superior courts • How it works? • Eliminate popular leaders from the political process, either forcing them to exile or disqualifying from the electoral process • Bar major political parties or opponents from contesting elections and cause divisions in parties who refuse to support in the legitimization process, through coercion or corruption • Build new parties or strengthen existing parties with weak or corrupt leadership, and use state machinery to ensure its electoral success • Formulate an election commission and an electoral context that significantly favours the “official” political party
Partners in Crime: Politicians • Hold elections under corrupt judiciary and a partial election commission, and select a parliament of choice • Coerce or corrupt the parliamentarians to ratify all dictatorial actions taken to date, thus obtaining immunity against invocation of Article 6 of the Constitution • Through constitutional amendments and political corruption, continue as an authoritarian but with a democratic façade • Take full credit for putting the nation back to the course of democracy and become a champion of democracy, worldwide, thanks to the sincere support of the foreign sponsors and patrons. • This concludes the legitimization process • While many politicians play a negative role in the process, politicians in general operate in an extremely unfavourable context, with enormous powers vested in military and civil establishment
Partners in Crime: Politicians • They face numerous threats including exile, political victimization and fake charges, getting barred from the electoral process, financial insecurity, and at times, even life threats
Partners in Crime: Foreign Powers • The modern world is weaved into a complex web of relationships and interdependencies – political, economic, security, cultural etc. • No state can survive or thrive as an isolated island • All dictatorships are inherently weak as they are based on baseless foundations • Every form of resistance is a threat to their survival and each acceptance is a source of relief • Western powers, the unequivocal champions of democratic values and human rights across the world, offer much more than a straw to a military dictator
Partners in Crime: Foreign Powers • In each instance of military coup in Pakistan, the civilized world emerged as a strategic partner to the military dictator • In the last episode, the dictator was widely certified as enlightened, moderate, liberal and even “democratic” • He was openly viewed as the only viable political option and solitary hope for the west, in a society of 160 million people • The contribution of foreign powers helps establish, sustain and prolong dictatorial rules
Partners in Crime: Foreign Powers • The contribution includes: • Flow of funds that help stabilize the economy in the wake of political and economic uncertainty caused by military takeover • The luxurious grants enable dictators to buy support (both “legal” and illegal) and invest in programs that build an atmosphere of construction, nation building, and socio-economic progress that marginalizes development under the deposed, democratic regime This relative comparison plays an important role in the formation of public perception about the new regime, its motives and its capacity to do good, and enhances the prospects of acceptability of the dictator in the eyes of the masses
Partners in Crime: Foreign Powers • Excessive military aid as is commonly witnessed through eras of military rule further strengthens the position of the military ruler in his own constituency – the military establishmentThis cannot be a coincidence that all military rulers had engaged Pakistan in a bloody war. In such context excessive military aid derives a very different meaning in public perception and is often viewed positively, constructing a sense of security • Building the image of the military dictator as an individual with great leadership skills and character and making him as an international figure through excessive media coverage and focus. He is often certified as a great ally, leader, statesman, nation-builder etc.
Partners in Crime: Foreign Powers • Giving positive ratings to Pakistan and its socio-economic state, which is often proved otherwise after the end of the dictatorial rule • Ignoring or playing down human rights and other violations by the military dictators whereas highlighting each “success story” of the dictatorial regime • Exerting pressure on key stakeholders to facilitate or to stay neutral in legalizing dictatorial actions • The above support is in exchange of the services rendered by dictators aimed at serving the strategic national interests of the sponsors, the cost of which is often too dear to our own national cause
Solo vs. Collaborative Struggle • Different individuals or segments of society have made attempts to confront military dictators in the past • The verdict of history is clear: Putting an end to military adventurism requires a collaborative effort. Adopting a wait and see attitude while someone else is under attack would never yield desired results • The stakes of all key institutions are interwound. Attack on one is an attack on the system. The moment to act is then and there • And if we are not willing to sacrifice, the cost of indifference would soon become unbearable
The Legacy of General Pervez Musharraf • The entry and exit of Pervez Musharraf neatly fits the model of dictatorship explained earlier • Like his predecessors (dictators), he played with key public and social institutions like toys • From day one, he was The Law • To make this “slight” legal adjustment, he performed judicial cleansing - forcefully eliminating the top and relatively independent supreme court judges - twice in his tenure, breaking all previous records in Pakistan
The Legacy of General Pervez Musharraf • He eliminated the top leadership of major political parties, the PPP and the Muslim League from political participation, and raised a new breed of top leadership, who were programmed to obey, commend, validate and ratify each and every policy and action of the General • He literally made the parliament subservient to the president, which is conceptually impossible to contemplate in a parliamentary form of government • He went all out to make the general elections favourable to the “King’s Party” (PML-Q), and acted as the Head Patron of the party during its election campaign, in gross violation of his “constitutional” mandate
The Legacy of General Pervez Musharraf • But every rise hath a fall – he lost the elections, due primarily to the public awareness raised by the lawyers movement and relatively free and powerful electronic media • You can fool some people sometimes, but you cannot fool all the people all the time
