Legitimizing the Illegitimate By Muhammad Iqbal Malik September 2008

Legitimizing the Illegitimate

By Muhammad Iqbal MalikSeptember 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".


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.


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)

Abrogation of Constitution and Cessation of

Civil Rights

Validation of coup by Superior Courts and oath

of allegiance

Deposition of Democratic Government

Unfair elections under undemocratic “legal”

framework

Validation of coup by the “elected parliament”

Establishment of pseudo-democracy under

legitimized dictatorship

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 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


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


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 ofMilitary 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


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


Foreignpowers

Maimedpeople

CorruptPoliticians

Civil bureaucracy

Corruptjudges &lawyers

Gunpowder(force)

Dictatorship

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 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


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


• 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


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


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


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


• 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.


• 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!!!

Documents

Legitimizing the Illegitimate By Muhammad Iqbal Malik September 2008