AT PENPOINT
Information minister Fawad Chaudhry came up with a statement that reflects the views of Prime Minister Imran Khan rather than his own. It is counterintuitive to accept that Mr Chaudhry would say such a thing off his own bat, because it would mean accepting that Mr Chaudhry was calling for the law to be disobeyed. Considering his professional orientation as a lawyer, and his pedigree as the son of a onetime Chief Justice of the Lahore High Court, and the nephew of a former Punjab Governor who was himself a distinguished lawyer, his call for a disobedience of the law would either be based on a wildly inaccurate interpretation of the law, or a profound desire to please Imran.
The statement was that there was no need for Imran to consult the National Assembly Leader of the Opposition on the appointment of the new Chairman of the National Accountability Bureau. The reasoning he gave was that the Leader, Mian Shehbaz Sharif, was accused by NAB. Whatever the rights and wrongs of involving Mian Shehbaz in the process of appointing the Chairman, the law does not say.
The Leader of the Opposition might find himself dragged over coals by the public for involving himself in the matter, but the Prime Minister’s statutory responsibility is not thereby removed. The Opposition Leader may say that he will not participate in the process because he is under investigation, when he is approached by the PM, and that would count as the consultation, but that approach must be made.
If the principle of not consulting is somehow accepted, then the question arises what is the duty of a PM who may himself be the subject of an investigation by NAB. As a matter of fact, the helicopter reference against the Prime Minister, which accuses him of misusing the KP government’s helicopters during the 2018 campaign, has not been dismissed, though it is not being.
If the law is defective, then Mr Chaudhry has a duty as a legislator to get it amended. The problem has been that amendment can only be carried out as if it was part of the Constitution; there is no moral pressure, but practical. The government cannot amend the law without the opposition, and if it tries to amend only the part dealing with the Chairman, it may have to deal with opposition demands for a more comprehensive review of the law.
One place where there has been a problem is the Chief Election Commissioner, whose appointment was after a consultation which was carried out by letter, so adamant is the PM on his refusal to meet the Leader of the Opposition.
This moral repugnance may go down well with the PTI base, but the Constitution does not contemplate it. The appointment of the caretaker PM also requires consultation, and as both the PM and Leader of the Opposition are likely to contest the coming election, applying the rule means that neither can the Leader of Opposition be consulted, nor the PM make a recommendation.
The PM should realize that he is a creature of the law, and disobeying it will only encourage further departures from it. That means that he must be particularly careful about obeying it. “Let the law be obeyed even if the heavens fall.” This sentence is ascribed to a Roman general passing the death sentence on his own son,who was serving under him. A PM must also obey this law, for beyond the Constitution lies only the law of the jungle
The Constitution has made detailed provision for what will happen if the two disagree, but is silent about what would happen if the consultation did not take place. Whatever solution is to be found, must be within the limits of the limits of the Constitution.
The alternatives are to be seen in the example of Bangladesh, which also toyed with the caretaker model. First, the caretaker model was used to suspend elections, and then it was dispensed with entirely, which has resulted in the Awami League establishing a stranglehold on power, after abolishing caretaker governments.
It has been freely said that the government wants to reappoint the present incumbent, Mr Justice (retd) Javed Iqbal. That an extension is not permitted by the law does not prevent the government wanting to retain someone who withstood the strictures passed upon it by the Supreme Court, which noted how NAB was being used to go after opponents of the government like the Chief Election Co while giving members of the government clean chits. This is exactly how the PML(N) is accused of behaving when in office. This should not be a topic of debate.
A NAB Chairman should have no hope when appointed, just like the Chief Election Commissioner, not in the sense that the task is difficult, but there is nothing that the government can give him, in terms of the same or another job, or some such blandishment. It is interesting that the PM does not like the CEC, who does not facilitate his party in by-elections, or in introducing electronic voting machines, even though he recommended his appointment after consulting Shehbaz by letter. Was that experience too bad for him?
The democratic system, indeed any system based on law, is based on institutions carrying out functions irrespective of who is in power. When in the Roman Empire democracy had collapsed, and empty forms were maintained, there remained powerful institutions which were able to ensure that the Empire was run according to the law. To keep those apply the law under control, there have to be institutions which have to be relentless. These are the institutions which need to be suborned by someone wishing to avoid obeying the law, and continue ruling despite it.
Politicians too often fall to this fallacy, and assume that as they have achieved power, they should not lose it, even if they cannot maintain the reason for their mandate. Imran obtained power after winning an election, not by a coup or resisting an invader. The catch is that the election was for a fixed term.
Also, the reason for electing him was a campaign against corruption. However, once in office, he had used the anti-corruption institution to go after his political opponents, and protect himself and his allies. If certain officials cooperate, then the government can perpetuate itself. Ultimately, the ruler needs the support of the armed forces, but if like Sh Hasina Wajed of Bangladesh, the ruler gets the support of the armed forces, then there are very heavy weights in his or her favour.
The CEC is crucial to perpetuating PTI rule. If he insists on a fair election, he introduces an element of uncertainty the government contrasts with the utility of the NAB Chairman. What if some new NAB Chairman was to become as uncooperative as the CEC?
However, the absence of consultation would put the President in an awkward position. He has to accept the PM’s advice, but what if it is presented to him without evidence of consultation? He cannot refuse advice.
An absence of consultation would lead to the person appointed liable to face legal challenges throughout his tenure. That in itself might mean that his judgement would be warped. It seems that the government is willing to risk this rather than follow the law.
The PM should realize that he is a creature of the law, and disobeying it will only encourage further departures from it. That means that he must be particularly careful about obeying it. “Let the law be obeyed even if the heavens fall.” This sentence is ascribed to a Roman general passing the death sentence on his own son, who was serving under him. A PM must also obey this law, for beyond the Constitution lies only the law of the jungle.
