Transcript Legitimizing the Illegitimate

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.
 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
Legitimacy Crisis: Sequence of Events
A real or perceived
political crisis
A real or perceived
leadership vacuum
Military coup by a group
of top military officials
(illegitimate regime)
Deposition of
Democratic Government
Abrogation of Constitution
and Cessation of
Civil Rights
Validation of coup by
Superior Courts and oath
of allegiance
Unfair elections under
undemocratic “legal”
framework
Establishment of pseudodemocracy under
legitimized dictatorship
Validation of coup by the
“elected parliament”
Dictatorship and the
Constitutional Debacle
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
The Great Escape
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 postdictatorship 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???
The Foundations of
Military Dictatorship
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
Pillars of Dictatorship
Gunpowder
(force)
Corrupt
judges &
lawyers
Foreign
powers
Dictatorship
Civil
bureaucracy
Maimed
people
Corrupt
Politicians
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
Key Players in the
Legitimization Process
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
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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
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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
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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 socioeconomic 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 establishment
This 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
Divide and Rule
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 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
Undoing the Damage:
Delegitimization
The Aftershocks of General
Pervez Musharraf
 A one-man rule in a modern society is inconceivable
 No human being can conceivably run a society on the
debris of social institutions
 Society today, is too complex a business to be fully
understood, leave alone manage it single-handedly
 The institutional damage done by a one-man rule in a
contemporary society is unbearable
 No reason, logic or fruit of authoritarian rule or
leadership can justify the cost
The Aftershocks of General
Pervez Musharraf
 Thanks to General Pervez Musharraf and his ingenious
team, every social institution in Pakistan is in tatters
today – politics, economy, education etc.
 He has succeeded in branding Pakistan as an
extremist society, harbouring international terrorists
 He has literally blazed two provinces – Baluchistan and
NWFP
 Despite enjoying absolute power, he did not move an
inch on building water reservoirs or enhancing power
resources, which has now thwarted industrial production
The Aftershocks of General
Pervez Musharraf
 He has engineered a judiciary through systematic
cleansing which does not enjoy any trust, confidence or
legitimacy in the eyes of the people
 How can a society, with so much injustices can thrive or
even survive, now, with such a judicial or legal crisis?
A Neat Exit
 General Pervez Musharraf, thanks to his international
patrons, has managed a very neat exit from the political
scene of Pakistan
 Despite initial resolutions of the political leadership, he,
through his powerful guardians has successfully
coerced the government in power not only to backtrack
from its resolve and refrain from taking him to task, but
also to continue the destructive course of Pervez
Musharraf through continuation of his policies
 The status quo, as it seems, is now guaranteed
Final Reflection
 For how long would this endless game of corruption
and legitimization of corruption continue?
 When would we have the courage to say enough is
enough!!!
 When would the will of the people become sovereign?
 For how long would our institutions spend countless
energies and resources on preserving despots, and their
illegitimate actions, instead of exerting efforts on making
an example out of them
Final Reflection
 Why is doing an evil so effortless and undoing it so
painful or even impossible?
 Is law more important than ethics and rightfulness?
 Is power more just than the right?
 Is the spirit so irrelevant than the letter?
 Are we absolutely condemned to be oppressed?
 We as a people have demonstrated limitless tolerance
for corruption and oppression
 It’s time to get a bit intolerant!!!