We are again witnessing intra-institutional crises and abnormalities of hybrid democracy in various countries of South Asia, including Pakistan, Bangladesh, Maldives and India. Given a heightening conflict between the executive and the judiciary, it is becoming worse in Pakistan and the Maldives. The already fragile political setup in Pakistan may suffer fatally if the political and institutional brinkmanship between the ruling-PML-N and the Supreme Court doesn’t stop forthwith. There are no signs of retreat by any side, which is putting the civilian edifice in jeopardy.
The Intelligence Unit of the Economist has surveyed the state of democracies in the world on the parameters of pluralism, civil liberties and political culture. Pakistan stands at the 111th position among 167 countries. Based on the parameters, the survey divides political systems into four categories: (1) full democracy, (2) flawed democracy, (3) hybrid democracy and (4) authoritarian. The report includes 19 countries in the category of full democracy; these include Norway, Sweden, Denmark, Canada, Finland and the United Kingdom. Among the 57 countries rated as flawed democracies are the United States, Japan, Italy and France. Pakistan is grouped among the hybrid democracies along with Turkey, Thailand, Zambia and Guatemala.
The authoritarian regimes in 91 countries include Russia, Saudi Arabia, North Korea and Egypt. If the military were to directly intervene, Pakistan would also join the ranks of authoritarian regimes. Due to a very critical security environment, the army seems to be hesitant in adding this headache to its overwhelming security woos. And it does appear adamant to allow greater space to the civilian side.
A post-colonial Pakistani state with its historical roots in the colonial authoritarian legacy and communal divison could not find a democratic premise due to a weak political culture. Democracy in Pakistan has always been a victim of an unbridled power struggle between an ‘over-developed’ civil and military bureaucracy and heterogeneous political forces divided on ideological and ethnic lines. The major hurdle in the way of democratic evolution had been the domination of the military arm of the state, which via direct and indirect interventions did not let the constitutional and representative system evolve. As a rule, the civil bureaucracy found it more convenient to collaborate with the establishment rather than become an arm of the constitutional rule.
Even the judiciary, which was supposed to be the custodian of constitutional rule and fundamental rights, became an instrument of the legitimisation of extra-constitutional rule. During the brief political intermissions, except for a brief period of Zulfikar Ali Bhutto, representative governments in Pakistan were overshadowed by various non-representative institutions. And after prolonged military rules, when the representative governments tried to expand their space they were resisted by the powers that be. This always resulted in a crisis of governance, as opposed to the state of affairs under military rules which were, otherwise, quite devastating for a young country.
Like the colonial period, a post-colonial state refused to concede sovereignty to its people. Unlike India, where the political culture was rooted in the vibrant national liberation movement and the founding Congress Party was well organised, the political tradition in Pakistan and the founding Pakistan Muslim League had very weak roots that could not stand the obstruction caused by a quasi-colonial state structure.
The fragility of political tradition can be gauged by the delay caused in the drafting of the first constitution and the delay in elections in the first decade, as well as the successive martial laws that strengthened authoritarian and non-representative forces. The defining moments for the development of the political culture were the periods of mass democratic movements and the people’s resistance to authoritarian rule. A centralised authoritarian state was not compatible with pluralism in a multi-ethnic country; this eventually resulted in the break up of a newly independent country. Despite a landmark social contract reached with the passage of the 1973 constitution, the constitutional setup was effectively undermined. Two tenures of dictatorship did not let the country evolve into a stable democracy, and genuine political forces were put to the sword with the help of opportunist political elements. Due to political rivalry, representative political forces continued to align with authoritarian forces and, thus, helped undermine democratic culture.
Pakistan is again struggling hard to keep its democratic transition going, despite a bumpy road. Unfortunately, it is being threatened by the very civilian stakeholders who should otherwise be safeguarding it. In the post-Zia period, clause 58-2 (b) in the constitution – inserted by the dictator – was used to overthrow four successive governments. Even after the passage of the 18th Amendment, a proactive judiciary sent two popularly elected prime ministers home.
If previously a powerful presidency was instrumental in packing up governments, it is now the judiciary that has assumed the prerogative of overturning the people’s mandate. In full and even flawed democracies, the courts are not supposed to overthrow governments. Rather than defending the civil and fundamental rights of hapless citizens, such as in the cases of disappeared citizens, the apex court seems to be preoccupied with political meddling. It has expanded its arbitrary prerogative to a point where it comes into direct conflict with both the executive and the legislature. The lacunae or ambiguities in the constitution or clauses introduced by a military dictator in the name of religion, such as articles 62 and 63 and Article 184(3) or the contempt law, are being used to stifle political space. Now the suo motu powers of the apex court and the contempt law are being used so excessively so as to potentially trigger the unravelling of the civilian edifice.
The case of deciding how long disqualification lasts under Article 62 (f) does provide an opportunity for co-existence between the judiciary and the legislature. Instead of arbitrarily deciding the duration of disqualification of a member of parliament, the Supreme Court bench has an opportunity to send the matter back to parliament. It also has the option to confine the disqualification to the current tenure since it is related to the qualification of a candidate who cannot be disqualified for the rest of his life on the basis of an omission in nomination papers filed for an election confined to a tenure. Similarly, the extraordinary powers being mustered by under Article 184(3) – or the contempt law – can be very harmful for not only a judicious process but also to the whole representative setup.
On the other hand, the PML-N too must restrain itself from confrontation with the judiciary. Even though the current parliament is at the end of its tenure, it can still play a role in ironing out ambiguities in the constitution. But the rivalry among the political forces may not let this parliament do the needful. Therefore, it is now time for judicial restraint and for the PML-N to tone down its onslaught against the judiciary. Let better sense prevail. Otherwise, we could fall from the status of a hybrid democracy.
The writer is a senior journalist.