Raja Hamza Anwar
Recent events in Pakistan’s political trajectory serve as an antithesis of the principle enunciated by Professor Shapiro, that, “Democracy is an ideology of the opposition as much as it is of the government”.
In effect, parliamentarians act as trustees for their particular constituents and owe a fiduciary duty to them. From this it thus transpires that, democracy is not the will of the majority but also the will of the minority who have exercised their discretion by showing their will in electing parliamentarians on the opposition benches as well. The Western notion of Parliament is not a homogenous institution of the majority but, it is a representative body where difference amongst minority and majority is a product. What we see in Western democracies is the right balance of rights and responsibilities between the majority and the minority benches. The net result is a ‘Functional’ democracy.
The Venice Commission lays down that the opposition promotes the interest of their voters, improves parliamentary decision-making procedure by ensuring debates, scrutinises legislative and budgetary proposals of the government, supervises and oversees the government to enhance accountability in the political process.
Former president Asif Zardari has been arrested by NAB. The current opposition leader in the Punjab Assembly, Hamza Shahbaz, along with senior PML-N member Rana Sanaullah, both are under arrest. Note that, the veracity of all the allegations levelled is yet to be established. To some in the treasury benches, these arrests are to be accreted to the Premier for rooting out corruption from the country, and these are just some highlights.
An example of an overreach of the current government in going after the opposition is the proposal for introducing legislation to prevent an “accused” Parliamentarians from entering Parliament. PM Imran Khan quintessentially referred to the British Parliament for banning participation of its “accused” member parliamentarians in the affairs of the Westminster Parliament. Here’s an insight into the legislation the PM referred to.
The British Representation of People Act 1981 does not in any way make a ground for an accused MP to be disqualified or circumscribes his participation in the affairs of Parliament, while only disqualifying them if they have been convicted under the law. Further in 2015, Britain passed a law which does not prevent an “accused” MP to attend parliamentary sessions or to vote and debate. Once an MP has been “found guilty” by a court of law, a by-election in that MP’s constituency will not be held at the behest of the government but, only when 10 per cent of the total constituents in his constituency sign a resolution calling for a by-election.
The rationale of the lawmakers in drafting this law is that, an accused is innocent no matter what the nature of crime, until proven guilty. Whereas in Pakistan it is charmingly eloquent to castigate the opposition as corrupt and lacking moral authority to remain in Parliament hence it is barred from entering Parliament. Similarly, all NAB authorities have to allege is that, the person was unable to account for a particular six years old entry in his account, therefore based on that alone he must be presumed guilty. The Islamabad High Court in ‘Nawaz Sharif v The State case’, admitted that the scope of Section 14(b) of the NAB Ordinance essentially opposes the well settled principle of law that an accused is innocent until proven guilty.
The second rationale for drafting this British legislation is that removing or suppressing a particular member Parliament due to mere accusations is tantamount to a breach of trust of a section of public. The will of the people dictates that, the public had exercised their will in the elections through voting so as to bestow their trust in a particular individual for voicing that section’s concerns and grievances. Therefore, the government should not be empowered to arbitrarily intrude in that trustee-beneficiary relationship. Doing so would marginalise the constituents who had voted for the opposition candidate.
With the opposition leaders barred from entering Parliament, if the proposal translates into being a law, will they be able to perform the functions bestowed upon them as trustees by the beneficiaries in their constituents? Or does one believe they should not be entitled to perform these functions for they are guilty of misfeasance even before courts having found them guilty? With latter being the case, will we not be aiding the majoritarian government to arbitrarily deny the representation of constituencies by individuals in whom they have voluntarily vested their trust? Looking to the future are we not then circumscribing the power of the opposition in Parliament, consequently leaving just the government at its helm, and a weak opposition unable to hold it accountable?
Finally, the matter of executive overreach has reached the hallowed gates of the guardians of our democratic values, the courts. Any executive overreach or even coups have always in the past sought validation from the courts. In the seminal case of Asma Jillani v Government of Punjab, the Supreme Court while declaring Yahya Khan’s martial law invalid, held that no absolute power can ever be vested with the single person commanding the majority. Thus, the way to prevent the executive building a narrative of loot and depredation caused by the opposition even before the court has rendered the verdict on these legal issues is by an ease in granting of bail if, the accused does not pose a substantial risk of absconding. The esteemed court in relation to NAB in Wali Khan case held that, bail must not be withheld as a tactical medium of punishment. Since the conviction rates in Pakistan are abysmally low, bail is often tactically withheld so as to acquiesce the accused. If the courts remain passive without taking cognisance of the democratic values at stake, then the people would soon be spectators to a weak parliament being run at the whims of the executive which will dysfunction Pakistan’s democratic future. -Courtesy: The Express Tribune