Barbecue or eggs?

Looks like the guinea pigs won’t catch a break anytime soon. We are hearing noises about the need for a presidential system once again. Who would have thought that the need for a reset would emerge so soon after the PTI being installed in government?

Two mainstream political parties – the PML-N and the PPP – have been sold to us as the devious corrupt mafia. Anyone thinking of shaking their hand is deemed morally reprehensible just by association. And yet within months of the PTI’s tabdeeli sarkar, debates about whether corruption or incompetence is worse are in full swing.

Is exercise of control becoming tiresome? We see power and responsibility perfectly separated and distributed to different actors. But what does power do if the chosen one can’t deliver? Old wisdom makes a ‘new’ comeback. It’s the presidential system again. The same experiment, the wisdom goes, failed multiple times in the past not because its basic assumptions are flawed but because it wasn’t properly executed.

It is about time the wise went back to the drawing board to rethink their own basic assumptions and modus operandi. There are three issues that need to be mulled over: our narrative around corruption; our approach to competence; and our disregard for certainty. All three are connected in a way. Without re-conceptualizing how we approach these issues, we can conduct any number of experiments on this polity with citizens as guinea pigs, but Pakistan will remain the zero-sum game it is.

Let’s start with the money issue. There are influential people holding responsible positions who genuinely believed that bags full of money stolen from the people of Pakistan were sitting somewhere outside Pakistan in lockers or safes and could just be wheeled back in if the heat was turned on those who supposedly took them out. The other fantasy has been that a celebrity prime minister with a good personal reputation in financial matters will be a magnet for foreign investment (by expat Pakistanis and everyone else). The faith of such believers is impervious to logic.

Our state has a money problem. We don’t have enough to fund our security needs after paying interest on debt and bearing the day-to-day cost of running the state. Let’s forget for a moment the right of citizens to food, health and education and a life of dignity, and focus on defence budget, debt repayment, foreign reserves, and balance of payment issues. The state’s immediate term solution to the issue is to undo the 18th Amendment and grab back for the federation the money flowing to the provinces post-18th Amendment.

Agreeing to such rollback may be suicidal for the PPP. At the moment, the PML-N also has no incentive to cooperate. But even if it were possible, is it a sustainable solution that will keep us out of the hole we are in? The popular narrative regarding the failure of our economy is this: we have a corrupt system abused by corrupt people who make dirty money and then take it out of the country. If we can catch these evildoers and punish them, it will deter everyone else and our economy will thrive. The bottom line for now is that anyone with money is dirty.

Let’s test this hypothesis. Can we name five folks who are wealthy but are perceived as clean across the spectrum? How about one? The assumption that the moneyed are all corrupt and thus all money is dirty money and the system must cleanse itself by following the money and penalizing those who have it is one recipe to ensure that no one invests in Pakistan. A system that stigmatizes those who have money or success stories in business or who make it big in one generation will scare away those who have the ability to make money.

This isn’t about the Sharifs and the Zardaris. Almost all businesspersons of some standing have had a brush with the state and its zeal to ‘cleanse the system’. When the state targets entrepreneurs and those with business ideas, and the ability to implement them, how will it attract investment in the private sector? Can the economy prosper without the private sector growing? Will the private sector grow and businesses invest in Pakistan if they have to constantly look over their shoulders and worry about getting caught on the wrong side of the system?

Our state’s approach to competence on the whole is no different from that to ability in the realm of business. It prefers loyalty to competence or integrity. Take well-educated and trained Miftah Ismail, for example. He made his mark in the field of business. Even those who dislike his politics or political affiliation don’t accuse him of being incompetent or dishonest. He must have joined public life (as head of BoI and later finance minister) against the counsel of sages in his family to stay away from public office. He may now be paying for not heeding that advice, having to run around arranging bails while facing accountability.

We have perfected a system that deters competence and initiative. Why should anyone who cares about his/her dignity and reputation wish to serve the state? Our babus are in the same boat. No bureaucrat is interested in taking decisions or being creative because doing things will get you in trouble. Staying put in office looking pretty doing nothing is the safest option to protect oneself. How do you reform a system that punishes initiative and fresh ideas?

And then there is the issue of certainty. Rule of law is about declaring the rules of the game in advance and then applying them consistently across the board. The paramount utility of rule of law is in the certainty it creates – even ahead of justice. But not in Pakistan. Here decades old cases can be opened up. Old performed contracts can be declared illegal and void ab initio. Public interest petitions can emerge from nowhere and result in huge liabilities for you if you offend the system or those at its helm, and disappear equally quickly if you make things right.

Such uncertainty is gainful for us lawyers but what does it do for businesses? The manner in which our legal system operates creates uncertainty together with a risk of liability that can’t be guarded against. Such uncertainty is a product of the need of the state to manipulate the legal system to produce desirable outcomes and consequences in matters of interest. But if you fidget with the legal system in one area to manufacture results of choice, it can’t retain its integrity, autonomy and predictability in other areas either.

To attract investment and enable the economy to grow and prosper we need a legal system that enforces contracts and promises, and protects property, and decides commercial disputes in a timely fashion with predictable results. No one will bring money to Pakistan or keep money in Pakistan if that means putting it at unforeseeable risk. If you infest jurisprudence with populism, certainty is the first calamity. The legal system then resembles a game of snakes and ladders. And that is not good for the legal system, the economy or the polity.

This brings us to paradoxes we have nurtured. It isn’t possible to have a fair, predictable, autonomous and efficient justice system if levers of control are used from outside to produce outcomes of choice in select matters. It isn’t possible to attract new investment to grow the economy while continuing to entrench a narrative of accountability that demonizes money and persecutes all those who have it. And it isn’t possible to fix a broken system when everyone with the ability to help also knows that to stay far away is in their best interest.

The gamekeeper can choose to barbecue the golden hen. Or it can stop poking the hen and enjoy the eggs.

The writer is a lawyer based in Islamabad.

Email: sattar@post.harvard.edu