Democratic Deficit Under Bhutto and the Return of Strong Judiciary: 1973-1977
3.2.1 Judicial Reaction to Bhutto's Socialism
Bhutto put the judiciary ‘in its place’ through his plan of socialist modernization. He nationalized basic industries through the Economic Reforms Order, 1972 on 2 January, 1972.106 The Supreme Court and High Courts could not question any of the provisions of this constitution and no injunction could be granted against anything done under this Order.
The Land Reforms Regulation 1972 was promulgated on 11 March 1972, which also barred the courts from challenging its provisions and injunctions against any act under this regulation.[584] [585] The management of schools and colleges was taken over under another Martial Law Regulation and the jurisdiction of the courts was completely ousted.[586] In order for the implementation of his socialist restructuring of the economy, Bhutto also reshuffled the bureaucracy by the Removal from Service Regulation dated 10 March 1972.[587]Bhutto’s new 1973 constitution had socialist orientation. The relevant clauses were Article 3, which laid down the principle of, “from each according to his ability” to each “according to his work”; Article 253, which was against the concentration of wealth and placed a limit on property one could own; and Article 34, giving full participation of women in all spheres of life. The Constitution also provided fora right to property under Article 23, subject to restrictions for many social objectives without fair compensation.
The courts could not grasp that the procedure of the law was no longer supreme, that popular will was. There was no need to check every legislative action by the judiciary, as the legislature was popular. The judiciary did not have to look for an excuse to intervene against executive actions. There was a need to rethink the purpose of the government, the new emerging foundations of the state and the place of legislature in it.
But ‘class’ was a new idiom or term of art for the judiciary. There was a collective opposition by chief justices and lawyers in Cornelius’ tradition against socialism in general and Bhutto’s ‘Islamic socialism’ in particular.Toor has argued that retired Supreme Court, Justice S.A. Rahman (a close colleague of Cornelius) was an ‘established Cold Warrior’ who actively countered Bhutto’s ‘indigenous’ version of ‘Islamic Socialism’.[588] Chief Justice Munir, though secular and liberal, responding to socialism’s rising demand during Ayub’s last period, corrected the ‘masses’, that equality before law does not mean that the entire wealth of the country should be equally divided, irrespective of ‘qualification’ and participation in the production.[589] He found Islam and socialism two contradictory words.[590] For him Marx and Engels were utopians.[591] Chief Justice Shahabuddin (3 May 1960 to 12 May 1960) was worried that the youth was attracted towards Western and communist ideas.[592]
This prejudice continued in later superior court judges during and after Bhutto. For Chief Justice Anwar-ul-Haq (23 September 1977 to 25 March 1981), class struggle and class-consciousness were a “class prejudice” and the best way to get rid of this class prejudice was to legislate like England and achieve a welfare state.[593] Chief Justice Nasim found the economic reforms of Bhutto “radical to the extreme”.[594] Chief Justice Sajjad Ali Shah (4 June 1994 to 2 December 1997) called Bhutto’s socialist economic reforms as ‘extreme measures’ to resuscitate the economic life of the country.[595] Chief Justice Ajmal Mian (23 December 1997 to 30 June 1999) started visiting prisons in the mid-1980s. While on such an inspection tour of a Qazi Court of District Turbat, he saw a young man with a red scarf around his neck who entered the court, did not greet anyone and did not seek permission from the Qazi.
The Qazi told Chief Justice Ajmal (as a Chief Justice of Baluchistan High Court) that he was a court clerk and one of the many young people from Baluchistan who went to the U.S.S.R. ‘illegally’ for further education and were‘taught’ communism. Chief Justice Ajmal admonished the young clerk and “tried to impress upon” the young clerk that he should be respectful to the elders and to the courts.[596]
While the reluctant and cautious Cornelius tradition in judicial office was looking at a weakening Bhutto who was loosing popular support, the strongest intellectual and legal reaction against Bhutto’s socialism was by leading jurists A.K. Brohi and Khalid M. Ishaque. A.K. Brohi disliked the concept of ‘Islamic socialism’ in so-called intellectual circles during late 1960s. Forhim, in this combination ‘Islamic’ though substantive, was degraded into becoming an adjective of “socialism”.[597] Later in 1970, he attacked Bhutto’s party program with Islamic socialism.[598] He emphasized that we do not need the concept of social organization, production and distribution from socialism because there are no words like capitalism and socialism in Holy Quran.[599] To see socialism winning he proposed law as a means for peaceful change. He rejected the Marxist concept of law in that it serves a status quo.[600] When socialism became a reality in the early 1970s under Bhutto, being apologetic, he wanted it close to the labour party in England rather than like Lenin’s. Nationalization without compensation was ‘expropriation’ which is Haram in Islam and against inviolable rights of property.[601] For him the ‘Muslim’ way is the middle way between communist and capitalist ideologies, that is, between everything for the state and complete liberty of the individual.[602] But when we read his understanding of political development, which seems as though he was the main ideologue behind the Cornelius tradition, this simply is neither the freedom of the capitalist society nor distribution of the socialist society.
This became evident under Zia’s dictatorship in the 1980s, which was the practice of the philosophy of Cornelius tradition (details to follow). Similarly, another influential jurist in Cornelius tradition,[603] Khalid M. Ishaque, gave a detailed critique of the economic system in socialism.[604]3.2.2 There Is a Need of Check on the Legislature
Seeing a parliamentary system with supremacy of the legislature, the Cornelius tradition presented their alternate model, which they had developed since the Ayub-Cornelius period. Before the 1973 constitution, Khalid M. Ishaque in 1972 warned that borrowed constitutions do not work. Constitutional limits, for him, were necessary on the power of the public functionaries and rule of law is such a limit. He further made clear that law here is Sharia and hence these constitutional limits are available in Islam defined by Sharia and Allah.[605]
Later in 1975, the Cornelius tradition produced a detailed reminder on the need for the judiciary to curb the legislature. The military was demoralized after their 1971 war defeat and the judicial arm was in search of a balance of power. The best piece of writing chronicling this fact is the 1975 work of Khalid M. Ishaque. He was a Senior Advocate of the Supreme Court and an eminent jurist and scholar of law and Islamic studies. He found the judicial arm of the state curtailed, all the powers had been concentrated in the executive and there was no counterbalance either in the legislature or judiciary. Ishaque complained about the exclusion of the jurisdiction of the courts from social disputes and the creation of administrative tribunals. He was annoyed with the judicial restraint of the courts so as to avoid confrontation with the executive. He pushed the courts to become the final protector for the people, as found in the constitution. He found that there was greater suffering under Bhutto than the colonial period, and blamed British precedents for this.
According to Ishaque, the judiciary’s aversion to adjudicate upon policy matters during Bhutto’s regime was flawed and was not followed by libertarian countries
like the U.S. and France. He also did not like the sovereignty of the parliament. He wanted it to be under rule of law, meaning, the ‘Objective Resolution’ which had subordinated the sovereign parliament under Allah. For him, Bhutto’s period mirrored the U.K., and Pakistan should move to a more U.S. type of system where the courts were the final arbitrator. He did not like state intervention in economic activity and accused such state intervention as always excluding the jurisdiction of the courts. He criticized legislations which were passed only to gain popular votes, legislation that promoted welfare oriented goals but was indifferent to individual needs.[606]
3.2.3 Recall for a Presidential System
The 1973 constitution promoted “parliamentary democracy with a vengeance”.[607] A.K. Brohi has given an account of popular disenchantment with parliamentary democracy.[608] He cited Lord Hailsham’s critique of parliamentary democracy in England[609] and declared it valid for all parliamentary democracies, on the grounds that the political requirements and economic necessities of the modern state have ‘outpaced’ the growth of its parliamentary institutions. The solution, for Brohi, was a “non-sovereign law-making” body in place of an omnipotent parliament which could judicially review the federal structure of the federation. He supported a pure “centrally directed line”. For him, parliamentarians should support their government. On the basis of this, he concluded, “serious thought should be given to the remodelling of government on the presidential pattern”. He rejected Ayub’s presidential system as “having the worst features of both the parliamentary democracy as well as of the presidential type”. He brought Justice Shahabuddin’s report as a reference, which supported a presidential system of governance over a parliamentary system of governance.
Brohi also gave a few suggestions to amend the constitution so as to bring it closer to the American style of constitution.[610] A.G. Chaudhry also claimed that the 1973 Constitution had the defect of not maintaining the balance of power between the three organs of the state (which, he says, is why Bhutto seized all the power) as in England under Mrs. Thatcher and the period of the 20 months emergency in India under Indira Gandhi.[611]The judiciary in Pakistan was not asking for a balancing role, it was cautious on the face of popular support for Bhutto. To put it correctly, the Chief Justice of Pakistan in 1973 made it clear that the power of judicial review in the Constitution of 1973 did not mean supremacy of the judiciary over the executive or legislature. In the face of wide-ranging changes, the judiciary in Pakistan was facing a dilemma of identity. Courts in Pakistan, according to Justice Kamal Mustafa, decided to perform a function in-between two extremes. The courts never tried to assume the functions of the parliament.[612] But we will see that this was a temporary position of the judiciary. As soon as Bhutto lost popular support, the idea of the democratic deficit emerged, and the judiciary assumed a central role in granting rights to fill the deficit.
3.2.4 Rights Under the Bhutto Regime: Confrontation
or a Substitute for Democratic Deficit
In the Constitution of 1973, and in politics around this period, Bhutto tried to regulate and confine the powers and jurisdiction of the superior courts. He was clear that no court should have any jurisdiction except that which was conferred, or would be conferred in the future on it by the constitution or by or under any law.[613] Bhutto, through the Fourth Amendment, forbade the courts from making orders against preventive detention. No debate was held in the assembly about this.[614] The sum of the amendments made by Bhutto was to remove the perceived hurdles on his path of reforms. His opponents defined this as uncontrolled powers[615] and by critics as “removing legislature and judicial oversight from his personal and party program”.[616] For Newberg, the process of modernization of Baluchistan, through the abolition of the Sardari system of large land holdings, was done in a ‘heavy-handed manner’. She concludes that, “both sides were right and wrong”.[617] Note that, in this analysis, personal and party programs are presented as negative, as opposed to the very highly placed doctrinal ideals of law.
Supreme Court Chief Justice, Hamood-ur-Rahman stated in 1975 that the court avoided judicial interpretation that might create confrontation with the legislature; rather, the courts tried to protect the rights of the citizens.[618] He was clear that democracy alone could not guarantee liberty; it needed the rule of law.[619] The place of judiciary in the constitutional scheme of 1973 was the same as that of previous constitutions. However, no other power and jurisdiction was given to the courts except those given in the constitutional scheme (Article 175(2)), in an effort to avoid ‘judicial activism’.[620]
The difference of positions on rights and politics between Bhutto and Hamood-ur-Rehman CJ and his other Cornelius collective jurists is illustrative in a live encounter of speeches. In the Second Jurists conference titled “Law as an instrument of peaceful change in developing countries”, Bhutto and Hamood-ur-Rehman CJSC were present. The President of Pakistan Bar Association, Yahya Bakhtiar, requested Bhutto to lift the emergency because the Defence of Pakistan Rules were being misused in some cases.[621] Bhutto very confidently articulated his case of fundamental rights in relation to political development. He emphasized on the jurists to examine the questions of law with constant reference to Pakistan’s social and economic problems. There is no equality before law if there exists glaring social and economic inequalities.[622] Giving examples of land reforms and nationalization of industry, Bhutto emphasized the necessity of radical changes by a representative government to enable even the unprivileged to arrest and enjoy their fundamental rights. Bhutto rejected fundamental rights as philosophical absolutes and for him “they flow from, and are not prior to social justice”.[623] He blamed those against his radical reforms as supporters of laissez faire and against progressive thought. Hamood-ur-Rehman CJSC, in his presidential address in the same conference, accepted that following Iaissezfaire we should not ignore social elements. But, at the same time, being offensive, he pointed out that we should not ignore individuals altogether as is done by philosophies of totalitarianism.[624] He further added that in our zeal of welfare state (which Bhutto claimed), we cannot crush the freedom of the individual. There is “no room for despotism under rule of law”.[625] Later, expanding on the rule of law, law is Sharia and Quran for him and the courts are to interpret it etc.
As soon as Bhutto lost popular support, Hamood-ur-Rehman started relying on old juridico-bureaucratic structure and therefore tools to address this democratic deficit devised during Cornelius period. In the LiaqatAli Case, Liaqat Ali, the son of Abdul Hamid Khan Jatoi Member National Assembly, was detained without serving the reasons of detention. The question before the court was that in cases of detention, whether the subjective satisfaction of the executive authority is enough and is immuned from judicial examination based on the Liversidge case.[626] Or the executive detaining authority should have some objective material, which can satisfy a reasonable person as to the necessity for such orders of detention, the Court decided in favour of the latter.[627] The court followed the rules of detention systematically developed under Cornelius and later Hamood-ur-Rehaman CJs in the Ghulam Jilani case, Baqi Baluch case, Shorish Kashmiri case and later Haider Bux Jatoi case.[628] In the Abdul Hamid case, the court went in further detail, merely stating the grounds of detention are not necessary but what is necessary is to discuss facts also.[629] In Nawab Begum case, the Court further bound the government to not only inform the detenue of the grounds for detention along with the detention order, but the same should be communicated to him as well.[630] All these cases were connected with the language controversy in Sindh in the month of July 1972 leading to the destruction of properties and bloodshed. In a very important political case of a politician Abdus Sattar Khan Niazi, the High Court granted bail to the petitioner in cases which were registered against him, and the grievance of the state was that the High Court did not even know the nature and number of those cases. The court strongly protected those provisions which required the detention authority to produce the detenue before the magistrate and Review Board. In this case, the prosecutor took five months to produce a list of seven cases before the court.[631]
The judiciary adjusted slightly and stepped back in F.B. Ali case.[632] This case made clear the status of emergency provisions and the scope of the Army Act. The Petitioner challenged the validity of Ordinance 3 and 4 of 1967. This Ordinance amended certain classes of Sections 2 and 59 of the Pakistan Army Act, 1952 to include seduction, etc. The Petitioner’s position was that no statute in U.S. can be framed to try civilian in times of peace. The courts opinion was that the Pakistan Army Act and its 1967 amendment do permit the trial of the civilian in times of peace.[633] In this amendment, the persons who tried to seduce and subvert the loyalty of army personnel will be tried under the Army Act and, for CJ, this was clearly connected with the defence of Pakistan. The courts refused equal protection of law on the basis of uniformity of procedure because it may be different for different classification of people. The court agreed with the scope of the military courts (which Bhutto established to deal with the unrest) but upheld its own powers. It relied on the judgments in the Fazlul Quader Choudhry and Siraj-ul-Haq Patwari cases. This was at a time when a number of cases regarding the detention of politicians were coming into the courts. The Courts’ responsibilities to protect the rights of the citizens like in the case of Malik Ghulam Jilani case were rein- forced.[634] Along with detailed guidelines, the Supreme Court made the points clear, that detention should be based on reasonable ground, objective criteria and consideration. Second, detentions are open to judicial review.[635] The courts were also strictly instructed to observe due process of law.[636]
But that was not easy for the Chief Justice. While agreeing with the CJ, an interesting case is mentioned by Gul Muhammad J. like a reminder. This case can be seen as indicating supremacy of the Legislature. Summary facts of the case were also told by Mohammad Gul J. The High Court had declared that the fee taken under West Pakistan Cotton (Control) Act, 1959 was illegal and directed twice in writs for it to be refunded. Bhutto’s government amended the law retrospectively to nullify the affects of these writs. The Council for the cotton mills in the Supreme Court made a plea that the judgments of the High Court were the end products of the constitutional jurisdiction whereas validating ordinances by the Legislature was sub-constitutional legislation. The Supreme Court refused to accept this argument because it could strike at the very root of the power of the Legislature. It would also throw into serious disarray the pivotal arrangement of the three organs of the state in the Constitution. The remedial or curative legislation by the Legislature is also the end product of the constitution.[637]
3.2.5 Legislature's Reaction
Bhutto’s political opponents continued using the courts, however, Bhutto responded strongly. The legislature passed an amendment in the Criminal Procedure prohibiting granting of bails before trials.[638] This was followed by the Fourth Amendment in the constitution in 1975.[639] The High Courts were ordered to stop interfering in the executive's detention orders, and from matters of stay of recovery, assessment or collection of public revenues. On 1 September 1976, the Fifth Amendment brought changes in the transfer terms of the appointment of judges, separation of the judiciary from the executive, and the establishment of separate courts for Sindh and Baluchistan. Its main feature, however, was restrictions on the grant of interim bails.[640]
The debate in the Assembly is helpful in order to understand the differences brought about by the Fifth Amendment. Federal Education Minister, Abdul Hafeez Pirzada, a known jurist, complained about the encroachment of the judiciary upon the functions of the legislature and the executive. While emphasizing the coexistence of the three organs of state, Bhutto (himself a Lincolns Inn graduate) made clear that independence of the judiciary does not mean supremacy or sovereignty of the judiciary. Sovereignty, according to him, lies in the legislature elected by the people. He argued that the judiciary should be subordinate to law and should not try to become a parallel legislature or executive.[641] This episode of confrontation with the judiciary coincided with Bhutto's losing popularity, using state apparatuses against people,[642] and law and rights replacing this democratic deficit.
3.2.6 Liberal Rights, But No to Ethno-nationalism—The National Awami Party Case
By a notification, No. SRO-176(1)/75 issued on 10 February 1975, the government of Pakistan banned the National Awami Party (NAP) alleging that the party was operating “in a manner prejudicial to the sovereignty and integrity of Pakistan”. The Party was also alleged to be carrying out terrorist activities, including the killing of PPP senior minister of the NWFP province, Hayat Mohammad Khan Sherpao.[643] On February 24, 1975, a reference was filed in the Supreme Court by the government under Section 4 of the Political Parties Act, 1962. The court held that the National Awami Party was acting in a manner prejudicial to the sovereignty and integrity of Pakistan.[644] In the NAP case, the judiciary agreed to put reasonable restrictions on fundamental rights when they come in conflict with state security. The Supreme Court’s verdict in the NAP case was followed by an Ordinance as an amended Political Parties Act to ban NAP leadership to qualify for Members of National Assembly or Member of Provincial Assembly. A Special Tribunal on anti-state activity was established and bail in such cases was disallowed.
It should be noted that this decision did not mean that the courts were favouring Bhutto. The NAP controversy was an ethno-national question in which the courts had a unitary position. The most important aspect of the decision is how the court separated nation from nationality. NAP’s position, as per the statement submitted by Wali Khan, was that Pakistan is a Nation but is composed of five nationalities having their own distinct ‘language’ and ‘culture’. Commenting on the issue of the ideology of Pakistan, he declared that a state as such has no ideology and political forces give it an ideology. In that sense, Islam was the Muslim League’s ideology and the PPP has given it a different ideology of socialism. Cornelius tradition’s jurist Sharifuddin Pirzada was the amicus curie in this case. The Court reproduced exactly this position in his writings as well as that of A.K. Brohi. Whereas, Munir CJ first time heard the word ‘ideology of Pakistan’ in 1962. This was Sharifuddin Pirzada, who in 1963 carved out the evolution, genesis and etymology of Pakistan from legal documents and constitutional missions under the British.[645] [646] While he was proud that Moudoodi used his book in the famous Moudoodi case to defend the ban against his party Jamaat-e-Islami,168 now Pirzada was prosecuting the ban of another party. Similarly, jurist Brohi was against the ‘Gospel of nationalism’, for him the new modern state emerged after the disintegration of Christian Europe under the Pope and hence has no spiritual orientation and he cursed protestentism for this. Khilafat (just like the Pope had been in Europe) for him was a return to that ‘spiritual’ life of the Muslim World.[647] He gave culture a subsidiary role. Culture is particular which is subordinate to ‘universality’ of Islam.[648] The court in the NAP case followed the same line of arguments. For the court, the Muslims of India claimed that they were a separate nation than Hindus and hence wanted a separate country to live according to the Quran and Sunnah. Therefore, for the Chief Justice, to say Pakistan was not one ‘nation’ but several ‘nationalities’ having different culture, ethnicity, etc. was to deny the very basis of Pakistan. The Chief Justice added, “The concept of nationalism is opposed also to the fundamentals of Islam which preaches that entire Muslim Millat is one nation under one Khalifa”. [emphasis is mine] Muhammad Gul J went to the extent that NAP leaders were trying to emulate Mujibur Rehman, who separated Bangladesh from Pakistan.[649] For Burki (1998), Jinnah emphasized the social and cultural differences of Muslims with Hindus in India over religious differences. Pakistani leaders, however, could not understand the social and cultural differences of Bengalis and insisted on religious similarities and that Islam could fashion a nation out of Balochis, Muhajirs, Pathans, Punjabis and Sindhis.[650] Amnesty International criticized this decision of the Supreme Court, and Yahya Bakhtiar reacted strongly declaring the ‘political organization’ having bias against Pakistan. He condemned Amnesty International report for 1975-76 which claimed there to be 38,000 political prisoners in Pakistan.[651] [652] To sum up, Bhutto’s early period after 1970 was a period of popular democracy. The courts could not exert themselves against this class formation and stepped back. The Asma Jilani and Zia-ur-Rahman cases were representative of this transition. Around 1975, Bhutto lost popular support, forcing him to rely on the military, the bureaucracy and the judiciary. The common story of the courts confronting Bhutto with the importance of rights is the story of a lack of democracy and not the strength of judiciary. Even the nature of these rights were in Cornelius tradition by the same stream of judges. They tried to push the Objectives Resolution but had to step back. Still, the religious opposition was so strong that Bhutto had to accommodate them and declare Qadiani’s as non-Muslims and had to ban alco- hol.174 This opposition came so strongly that it turned the tide of political development for many decades to come in Pakistan. Its strength was the decision of the hegemonic class to back it at the height of the cold war, that is, the invasion by the U.S.S.R. in Afghanistan and Iranian Revolution of 1979 and hence Pakistan as a frontline state. 3.2.7 Bhutto's Downfall: Countering the ‘Suppression Explanation' Bhutto’s complicated era is reduced to suppression when analyzed by the Right,[653] and the betrayal of socialism when analyzed by the Left. Bhutto's downfall has been linked to the alienation of the middle class and to campaigning by the opposition alliance (Pakistan National Alliance). Waseem suggests that Bhutto's regime should be characterized as an intermediate regime, representing both the old elite and the newly aspirant lower middle class.[654] We are to go beyond this description to grasp the relation of law with democracy in Bhutto’s last years (1975-77), with a more dynamic analysis. Let us first agree that the first genuinely populist leader of Pakistan was Bhutto.[655] However, Bhutto was not able to deliver sufficiently to the working class or the middle classes, due to the resistance of the old juridico-bureaucratic state structure. Opposition towards Bhutto first came from the Civil Services of Pakistan; business people, industrialists, landlords and retired military officials. A party-based opposition was formed by landlords in the United Democratic Front under the leadership of Pir Pagaro, a big landlord of Sindh province. The National Awami Party came under the influence of autonomists (ethno-nationalists) and some urban radicals. At the same time, landlords moved into the PPP and hence, their opposition was weakened. PPP ticket holders in the 1977 elections were from big landed families as opposed to the middle class candidates of the Pakistan National Alliance. Forty of the 100 previous MNAs of the PPP were refused party tickets.[656] The Bhutto regime showed a bias towards the small-scale industry, trading and merchant classes.[657] State patronage by Bhutto could only co-opt the salariat segment to some extent while traders and merchants who were in the secondary and tertiary layers of production were not integrated.[658] Thanks to nationalization, there were jobs that were used at the discretion of the regime to accommodate supporters and to remove opponents.[659] During the first two years of Bhutto’s rule, bureaucrats were bypassed, but Bhutto indulged them after nationalization,[660] bringing the bureaucracy under political supervision or oversight.[661] While responding to the accusation that he misused civil services, Bhutto responded that bureaucrats holding high political offices during his regime were chosen through elections. Above all, he explained that in a multiparty democratic system, watertight segregation was impractical. In the U.S., the party fills top administrative posts, he argued. Similarly, in the parliamentary system, civil services and the other services are not considered islands running parallel to the governments—“the myth of segregated, neutral civil servant was needed by colonialism”. The neutrality and facelessness was fraudulent.[662] In the first 2 years, Bhutto tried to undermine the military but later used it. Raza had advised Bhutto that the military has a permanent place on the political scene of Pakistan and not to eliminate it.[663] Why did Bhutto not strengthen the legislature and the party, but rather relied on the bureaucracy and military? Legislators were mostly absent, even with a two-third majority, the legislature could hardly pass any bill. Ministers were absent when issues concerning their departments were raised. Bhutto’s presence always made attendance better but he himself neglected the legislature.[664] The party was rife with factions.[665] By 1976, the provincial governments were placed under Nawab’s and the landed aristocracy, and conservatives dominated the PPP.[666] This divided the party and left no choice for Bhutto but to rely on the state machinery. 3.3