An illiberal democracy?
Waqas Aslam Rana
The appointment of Raja Parvaiz Ashraf as prime minister comes hot on the heels of the disqualification of his predecessor and instant accusations by the rulers of a so-called judicial coup from within and outside the country. So it is important to see if this is really what has happened, and what it means for Pakistan’s political development.
The “liberal twitterati” of Pakistan have been abuzz ever since the sacking of Yousuf Raza Gilani, claiming that the Supreme Court has over stepped its bounds and threatened the very foundations of democracy in the country. This is a serious allegation, and therefore it is not to be taken lightly. In other words, the question being asked is whether in a democracy the rule of law (or constitutionalism) trumps the will of the people (expressed through the elected representatives)?
Looking first at Western political tradition, it is constitutional liberalism that has governed its democratic evolution. Philosophers such as Alexis de Tocqueville, observing the nascent democracy of the Unites States, were fearful of a “tyranny of the majority” and the need for it to be tempered. In current times, Fareed Zakaria explains it wonderfully: “Constitutional liberalism is about the limitation of power, democracy about its accumulation and use.” His argument is that it is constitutionalism that leads to democracy, and not the other way round. Contemporary European and American history attests to this fact.
All this has a direct bearing on Pakistan. But first, let us look at the current situation and consider the main allegations against the Supreme Court. First, it has been accused for a while now of judicial activism and interfering in the affairs of the executive. Second, the apex court has been criticised for playing to the gallery, as it were, and taking populist decisions. Third, it has been insinuated by certain quarters that the court has been selective, even partial, in the cases it has taken up.
Let us look at the last charge first, which is most easily dismissed. The issue of missing persons in the “war on terror” was first taken up by Iftikhar Chaudhry when Musharraf was still in power. More recently, the Supreme Court has been vigorously questioning the role of the intelligence agencies and the Frontier Corps in Balochistan. Clearly, this court has tried to hold accountable not only civilian but also military institutions in Pakistan. This is a first in our history, and negates the accusations of selective justice being hurled upon their lordships.
The issue of judicial activism is more complex and deserves greater scrutiny. It is true that the Supreme Court has been rather “active,” with a plethora of suo moto notices to show for it. But the question to be asked is why? The answer lies in the withering away of the state’s capabilities, particularly in the last decade or so. Mind you, I am talking about the overall state machinery and not any specific “bad” governments. For reasons well known to all and sundry, a power vacuum has been created due to the retreat of the state at all levels of governance in Pakistan. And if there is one indisputable rule of political science, it is that power begs to be balanced. This is what really explains the exceptional enthusiasm with which the Supreme Court has acted since its restoration in 2009. The fact that this happened amid a large-scale public campaign ensured that, for better or worse, Iftikhar Chaudhry and his colleagues on the bench had to keep an eye on the expectations of the masses. This was not an ideal situation, but then there is nothing ideal about political evolution in the history of any region, much less a post-colonial one such as ours.
Given all this, what does it mean for Pakistan? The instability of the present moment notwithstanding, the emergence of the Supreme Court as an independent institution augurs well for the evolution of the Pakistani state and society. And this brings us back to constitutional liberalism. It does not matter how much PPP leaders parrot the line that parliament is supreme; they are wrong. In a real democracy, it is only the Constitution that is supreme. The executive, judiciary and legislative are all subservient to it and none can claim superiority over the other. In our history, only the executive has had any real power in this equation of three variables. Now, a second variable has been activated and the judiciary is playing the role it was always meant to play. Consequently, all the players are learning to readjust to the new rules of the game. This is creating tension in the short term, but will produce long-term dividends for Pakistan.