Not mutually exclusive
There is a misconception that has been making rounds in media circles, legal community, political cathedrals and drawing-room discussions: that in our beloved country today, the two complimentary values of ‘rule of law’ and ‘democracy’ are embroiled in a demoralising battle of supremacy over one another. And the mere appearance of this perceived conflict is rotting the very fabric of our nation.
Examples? Well, where do we start! The Supreme Court (read: ‘rule of law’ for a moment) orders the writing of the Swiss letter, but the democratic majority (read: government) tells the law to go you-know-where. The law requires a murderer to be punished, whereas majority of the legal fraternity showers rose-petals at him. The law mandates religious freedoms, but the majority celebrates forced conversions. The law necessitates equality and a classless society, but the Parliament (majority) passes a contempt legislation that places a select group of individuals beyond reproach. And perhaps in the most manifest display of the tussle between democracy and the rule of law, the law convicts a prime minister, disqualifies him, and levels corruption charges against his family, but the process of democracy elects his son to the same seat in the National Assembly!
And so, one could be forgiven for mistaking that ‘democracy’ in our nation, is at daggers with the ‘rule of law’.
But this proposition, in the manner that it has been framed, is incorrect. Democracy is not at war with rule of law. But a very similar idea (which is often confused with democracy) perhaps is. And that idea is ‘majority rule’.
Let’s understand the distinction first. ‘Democracy’ is a much more nuanced idea than simply ‘majority rule’. Democracy, and particularly a constitutional democracy (which is what Pakistan is, or ought to be), incorporates an entire ethos of rights and responsibilities which simple majority cannot override at will. In fact, in many ways, the constitution in a democratic system is the shield against the whims of 50% +1 opinion. And such a constitutional structure, which is the backbone of democracy, is not just in accordance with the ideals of rule of law, but it is the very spirit of it.
Leaving such academic and philosophical distinctions aside, it is still pertinent to probe as to why ‘majority’ (or at least the majority of people’s representatives) are finding themselves across the isle from the rule of law. Are we a society where law and its empire do not have the endorsement of the elusive majority? Or is it simply that the government (representing the majority’s political will) is plain crazy? Is only one side of the equation – the majority – to be blamed for this clash? Or does the ‘rule of law’, as is currently being applied by the honorable Supreme Court, share part of the blame?
Let’s parse this out.
Are the majority, and their representatives, at war with the rule of law? The answer, in terms of the (elected) representatives, involves viewing governance through the prism of party politics and partisan allegiances. Even without attributing mala fides to the political leadership, our question can be answered in the affirmative – events of the past few months (especially surrounding the former prime minister and the current Speaker of National Assembly) will demonstrate that political loyalties have trumped all concerns of law and constitutionalism.
However, the rationale changes in regards to the majority (masses) that elect these representatives. And the recent Multan election serves as a classic example for this. The people of NA 151 had elected Yousaf Raza Gilani to be their member of the National Assembly in 2008. And a confluence of (tragic) events made him the prime minister. After four years of bad governance, national scandals of corruption, a conviction from the Supreme Court and resulting disqualification, he was still welcomed (as a martyr) in his constituency. And that too with such popularity that despite opposition from all political parties, a stamp of disgrace from the Supreme Court, a rushed election schedule and unhappy establishment junta, the people elected his son in the by-election. This election, in many ways, was a local referendum on Gilani’s years in premiership, and (most importantly) on Supreme Court’s verdict that disqualified him. Surprisingly, Gilani triumphed.
Reason? Is NA-151 so duped by pir-murid culture that they cannot see beyond it? (Notwithstanding that opposition forces also had gaddi-nasheens and Makhdooms). Or do people of Multan just not believe in rule of law? The answer is much less nefarious. It is not that the people of Multan do not care about the rule of law… it is just that they care for certain other things a lot more! In a country where significant portion of the population survives below the poverty-line, majority of the youth is unemployed, and the average man lives each day under the fear of oppressive thanedars and sclerotic justice, it is only natural that personal necessities trump the constitutionality of the new contempt law and nuances of Article 63(1)(g) of the constitution. To expect anything different, while discussing ‘rule of law’ on some talk-show, would not just be elitist, but also naïve.
But does the problem only exist with the uneducated people and their reprehensible representatives? Or do the cathedrals of justice share some part of the blame for this tussle? Depending on who one asks, the answer might be some form of the ‘Chief tere jaan-nisaar’ cry, whereafter the issue would be avoided altogether. But that does not stem the rot. The truth is that – between an obsession with the Swiss letter, disqualification of the prime minister, overturning of Nawaz Sharif’s conviction after condoning a delay of 8 years, and quickly brushing aside Dr Arsalan’s case while ‘sparingly’ exercising inquisitorial proceedings in every other financial scandal – there is enough fodder to allege that justice in our land is tainted (or at least partisan). And as soon as this impression, whether held correctly or incorrectly, settles into the national conscience, all is lost. Once an individual, or a group, starts believing that the interpretation and application of law is contaminated, it is only natural that some fraction of the group would resist (even oppose) such law. And if this group happens to be a majority, this clash would present itself as a battle between democracy and the rule of law.
This battle of institutional supremacy in Pakistan is a game of Russian Roulette, where both sides take turns pulling the trigger not on themselves, but on the idea of democracy. However, there is still time to step back from the edge. The writing of a simple letter (nothing more than a few lines on a piece of paper) from one side, and the exercise of much needed restraint from the other could save our democratic system. Now if only we are able to look past individual and institutional egos, to muster the collective wisdom required.
The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School. He can be reached at: email@example.com