Democracy and distrust

Powers exercised under the suo-motu jurisdiction (Article 184(3) of the constitution) have allowed the Supreme Court to venture into domains usually cordoned off for the legislative and the executive branches.

On the other hand, the executive, through the promulgation of ordinances, has been sidestepping the legislative process. Both, the executive and the judiciary, therefore – by usurping the role of the legislature – have strayed into domains that are not theirs to occupy. This, naturally, makes for a weak democratic tradition.

One justification for judicial restraint or judicial deference towards the legislature, at least in substantive policy matters, lies in the assumption, finely articulated by John Hart Ely, in his famous ‘Democracy and Distrust’, that an “effective majority will not unreasonably threaten its own rights”.

The courts, as envisioned by Ely, for instance, are to ensure that procedurally the interests of the many are represented in the decisions made in a polity–- that is, the political process is open to “those of all viewpoints on something approaching an equal basis”. This may entail policing the political process to also then ensure that the already elected representatives do not entrench themselves in ways detrimental to the people who elect them: “the ins [may be] choking off the channels of political change to ensure that they will stay in and the outs will stay out”.

Second, since the majority may be relied upon to safeguard its own rights but not those of the minority, the courts have a much more expansive role in ensuring that the minorities are not treated any worse than the treatment that the majority accords itself. Therefore, the protections that the courts oversee, according to Ely, must be two-fold: (1) the elected representatives must not treat themselves better than the rest of us – that is, not self-deal; and (2) the elected representatives and the majority must not treat themselves better than any minority.

But what happens if the legislature indulges in self-dealing? Ely, in this regard, refers to the “insurance policy”, whereby, “[i]f most of us feel we are being subjected to unreasonable treatment by our representatives, we retain the ability – irrespective of whether they are formally or informally insulating themselves – to turn them out of office”.

Professor Richard Primus, of the University of Michigan Law School, in his recent blog, interestingly observed that Ely’s ‘Democracy and Distrust’ no longer resonates with his students. The reason being, as his students argued, that in reality, the electoral process does not safeguard majoritarian preferences, since, among other things, the “elections are shaped by money and skewed toward the interests of the wealthy” and that “electoral districts are heavily gerrymandered, thus preventing democratic responsiveness”.

In Pakistan, there are even more reasons to be sceptical of the theory since our electoral process is quite broken. Heavily mired in legitimacy concerns, elections churn-up representatives not beholden to the interests of their constituents.

The legislators in Pakistan are usually local hegemons: landlords, populist religious leaders, wealthy industrialists or influential members of an influential tribe, who win the elections essentially because they are the only ones who can. Money, especially that of the sugar mill owners, as we recently saw, plays a huge role, as do the powerful unelected institutions who need popular and populist, yet subservient, players in the National Assembly to safeguard their interests.

While the elite that constitutes the ruling class in any society is markedly distanced from the general electorate, in terms of ideas and lifestyles, that disparity is humongous in Pakistan. The protection of the laws and the provision of basic necessities, such as quality education and health, are already readily available to the local hegemon, the electable politician, their family and friends, and there is only a marginal incentive, if any, in extending these benefits to the constituents at large. This, in turn, perpetuates the divide and entrenches a self-dealing class further.

A broken political system, which is non-representational to its core, with a huge people-ruler divide not surprisingly breeds the idea that people’s representation may not be that important, as long as results are delivered by an upright, honest saviour, irrespective of the route the saviour pursued to get to the helm. The representational aspect of democracy takes a backseat. No wonder, then, that we have suffered three long dictatorial rules.

The fight for a democratic tradition thereby entails that we work towards making ourselves relevant as citizens. Our focus ought to be that the equal protection of the laws, which include the equal protection of the arcane and sometimes arbitrary administrative processes that for now only extend meaningful protections to our elite – the politicians, the rich businessmen, the civil servants (read: masters) and those closely associated with them, are also extended to the rest of us, the majority and the minorities.

It is imperative that the legislative role of the legislature is not usurped by the executive and the judiciary, but also, equally if not more importantly, that our legislature becomes more representation-oriented than it is right now.

One of the first steps in that direction, however, would be a whole-hearted recognition of relative supremacy of representational democracy, as a basic foundational value, on which the edifice of equal protection of law is then built.

The writer is an Islamabad-based lawyer.