Why democracy has survived

Democracy has survived because we now have an effective means to police the boundaries of our constitutional order.

It is March, 2013 and elected assemblies have survived in Pakistan for five years. One may be justified in thinking that this is a remarkable occurrence, since it has happened only once in over six decades. The PPP, which manoeuvred the ruling coalition to the finish line, seems quite astonished itself. The president, in his role as co-chairperson of the PPP, can’t stop harping on about the completion of the five-year term. As one newspaper headline reports, the president claims, “we know how we saved democracy for five years”.

Well, let’s take the president’s advice and try to discover the secret recipe for democratic survival. Some of the ingredients that immediately come to mind are rampant corruption, chronic power shortages and steep inflation. To spice it up, we can add breakdown of law and order, ethnic and sectarian conflict, and let the whole mixture cook for five years. One can also add a few condiments to the secret formula. When the country experienced its worst floods in modern history in 2010, the PPP co-chairperson travelled to France to visit his chateau and to Britain to hold a PPP rally. Another great addition can be the consistent refusal to enforce court judgments as required by the Constitution.

As an analyst of constitutional systems, I find it quite absurd that one can claim to have saved democracy through such measures. In fact, I would argue that the current PPP-led coalition was probably one of the least likely candidates for completing its tenure among the democratically elected governments Pakistan has had thus far. Interestingly, even the PPP leadership finds it hard to explain how this happened. It is noteworthy that the PPP offers few, if any, examples of substantive accomplishments during its 2008-2013 tenure. This is intelligent because there isn’t really very much to show. Any megalomaniac claims can be easily countered by impartial reports, such as those published by the Transparency International.

How, then, did democracy survive? It could be for one of two reasons. First, we can argue that in Pakistan, a government needs to meet a requisite standard of ineptness, inefficiency and corruption to be able to complete its term. This is a pessimistic state of affairs that holds true if we take seriously the claim that democracy survived in Pakistan because of PPP’s governance. A more realistic explanation emerges if we look elsewhere in the political system. A democratic set-up does not only consist of an elected parliament. In fact, Pakistan is supposed to be a constitutional democracy that explicitly provides for separation of powers, and institutions other than parliament to safeguard the Constitution. Looking elsewhere would show that democracy survived in Pakistan despite PPP’s ineffective governance.

The most consequential occurrence in Pakistan’s politics in the last decade has been the birth of a new constitutionalism and the rule of law. For one who engages in the scholarship of comparative constitutionalism, this is a remarkable occurrence indeed.

Outside the western world, there are only around five developing countries that have effective institutional mechanisms to enforce constitutional provisions. In Pakistan, neither politicians nor public intellectuals fully understand the doctrine of judicial review and it is not my purpose here to ponder on it. What is noteworthy is that there is scholarly consensus on effective judicial review leading to democratic consolidation.

To understand the role of the new constitutionalism, a few preliminary remarks are in order. It has to be understood that elected officials are the agents of the people, not their masters. The current ruling coalition has often behaved as if its electoral success gave it carte blanche to do as it pleases with its official authority. In fact, PPP officials were often visibly disconcerted to know that there may be constraints placed on their exercise of powers, notwithstanding their electoral success. Elected officials are hence only agents of the people. And, so they must behave. The limits of their behaviour are explicitly defined in the Constitution. The problem in developing democracies, however, is that there is no authority that can police the limits of constitutional behaviour. In Pakistan, the birth of new constitutionalism has brought precisely this power in the form of effective judicial review.

The democracy-enhancing role of the courts is a subject of extensive scholarship. This is true both in established and in new democracies. The US Supreme Court has been exercising effective constitutional review since 1803. European countries stuck to parliamentary sovereignty a bit longer, but set up strong constitutional courts after episodes of power abuses by elected governments. Today, there is a consensus on judicial oversight of elected governments based on the text of a written constitution.

In Pakistan, the courts played a critical role in consolidating democracy during 2009-2013. Most importantly, the courts performed a monitoring function, whereby they exposed the worst excesses of power by the elected government. In addition, they played an active role in checking the abuse of power and in rectifying the problems that emerged from the misuse of public authority by elected officials.

In effect, while there was a lack of good governance in Pakistan during the last five years, there was also at the same time an impulse toward the rule of law. Both good governance and rule of law are necessary in a constitutional democracy. They are, however, distinct, and there can be an uneasy coexistence of rule of law with bad governance as there was in Pakistan during the last five years.

The faith in democracy during 2008-2013 did not come from the government’s performance. It could not have, unless we are ready to believe that Pakistanis have a special penchant for corruption, illegal appointments, power outages, ethnic and sectarian strife, lawlessness and breakdown of public services. Instead, had it not been for the revival of the rule of law and for a mechanism to enforce constitutional limits on power abuse by elected officials, democracy would not have survived in Pakistan.

The PPP, however, remains buoyed by the thought that it has completed its five-year tenure. The president and other PPP leaders are taking this as an indication of the people’s assessment of their performance. The people can be deceived, no doubt. But in time, the people understand, especially when power excesses are exposed and checked.

You can fool some of the people some of the time, but you can’t fool all of the people for five years. The truth lies elsewhere. Democracy survived not because of but in spite of the government’s performance. It survived because we now have an effective means to police the boundaries of our constitutional order. The test of this idea will be the forthcoming elections and the PPP’s performance in it. Will the people reward inept governance or show their faith in constitutional governance? I wager that they will go for constitutionalism and the rule of law.

Published in The Express Tribune, March 14^th, 2013.