Constitutional hardball

Published: September 10, 2019


PHOTO: EXPRESS/ FILE The writer is a lawyer based in Lahore and also teaches at the Lahore University of Management Sciences. He holds an LLM from New York University where he was a Hauser Global Scholar. He tweets @HNiaziii

The most beloved tactic in the populist playbook is the exercise of legitimate powers to achieve undemocratic objectives. Dangerous, because legitimate means are used to attain illegitimate outcomes. A form of maneuvering that in 2004 was referred to by Harvard Law Professor, Mark Tushnet, as “constitutional hardball”.

Tushnet’s colleagues at Harvard, the brilliant duo of Daniel Ziblatt and Steven Levitsky, have shown how populist leaders use constitutional hardball to lead otherwise functioning democracies into authoritarianism.

Like a good populist, Britain’s Boris Johnson has embraced this concept. His journey to 10 Downing Street has shown textbook populist traits: from declaring himself the “voice of the people”, to simultaneously calling all who opposed his European exit strategy as “traitors”. Now his desire to make sure Britain leaves the EU without a deal before October 31 has got him playing hardball. But British democracy has fought back and has lessons to teach the rest of the world facing populist surges.

Johnson’s agenda is simple: make sure Britain leaves Europe without a “deal” before October 31. Leaving Europe without a deal will throw the UK’s economy into freefall. Johnson is either oblivious to this or doesn’t care. But the pesky Parliament won’t allow him to do so. First, because he doesn’t have the numbers to steamroll his plan through the legislature, and second, because even members of his own party doubt the credibility of leaving the EU without a deal. So, Johnson made a move without precedent. Using an unwritten rule of the UK’s famously unwritten constitution, Johnson decided to suspend Parliament’s sessions in September and October. This action is legal. However, historically the suspension of Parliament is supposed to be an extraordinary measure. Johnson is using it to eliminate the chance of a democratic debate on a decision that would have lasting consequences on Britain.

The British Parliament fought back by requesting a vote to seize control of the legislative agenda so that they could utilise the limited time they had to stop Johnson’s plan. The vote won with 328 votes in favour, shocking Johnson. Twenty one members of his own party defected to hand him a defeat and allow the opposition to control the legislative agenda and pass a bill that would force Johnson to extend the October 31 deadline unless a deal is reached and approved by Parliament. An infuriated Johnson expelled the 21 dissenters, but the damage was done. The bill passed the House of Commons and is expected to pass the House of Lords as well.

Johnson then tried to call a snap election. This failed as well, with Johnson unable to attain the requisite two-thirds majority in Parliament. In a triumphant display of dedication to democracy, the UK Parliament served Johnson with three defeats in two days.

In attempting to delegitimise his opponents and paint himself as the “voice of the people”, Johnson has used rhetoric that people around the world will find familiar if they have seen populists in their politics. Claims of working for the “people” that are shallow and should be called out for being so. For example, Johnson says that because the British people voted to leave the EU in 2016, his actions to achieve that goal via suspending Parliament are justified. But that is classic misdirection. The Conservative manifesto talked of a smooth exit from Europe, with the prospect of a no-deal Brexit never put to the people. The people never voted to give the Prime Minister untrammeled powers to kamikaze democracy to achieve Brexit.

Neither is Johnson the “voice of the people” he claims to be. Johnson was never elected Prime Minister through a popular vote. He was placed in that office by his party. Britain has not had a say on whether they want a Prime Minister Boris Johnson.

Britain’s showdown with constitutional hardball and its survival — so far — has important lessons that show how democracies can withstand such attacks. Nations like Pakistan, striving to build stability in democracy, can learn from these historic occasions.

First, we must understand the strong democratic ethos that exists in the members of the UK Parliament. It was not just the opposition that rose up against Johnson’s moves, but also members of Johnson’s own Conservative party. The 21 Conservatives who voted against Johnson did so by putting their political careers on the line. They suffered expulsion as a result. Would members of Pakistan’s legislature be able to ever put aside their own desires for the greater good of democracy in the same way?

Not until we culture a democratic ethos of the same blend.

It is hard for parliamentarians in Pakistan to replicate what happened in Britain given that the 18th Amendment forbids members of a political party from opposing their own. While I support the 18th Amendment, as I have stated before, this provision does not square well with how democracy should work.

It is also worth noting that extraordinary powers, even if legal, should not be used in ordinary circumstances to circumvent democratic deliberations.

Johnson’s move to prorogue Parliament is a direct act to undermine democracy because of a lack of faith in the parliamentary system. It is the action of a man who is bitter about not getting his own way. This is similar to Imran Khan’s use of the Presidential Ordinance to circumvent Parliament because he does not want to engage with the opposition. His use of the power to promulgate the GIDC Ordinance was an act that showed disdain for democracy. Such constitutional hardball must be resisted from within and outside Khan’s party.

Finally, and this is important for proponents of abolishing our current system for a presidential one, Britain has shown that a parliamentary system is much more resistant to populist challenges than a presidential one. As pointed out by Max Fisher in The New York Times, a parliamentary system makes it much harder to “wage partisan warfare” given the need to compromise with the opposition. In a democracy as fragile as Pakistan’s it would be ridiculous to abandon this safeguard to replace it with one that is more conducive to populism.

Published in The Express Tribune, September 10th, 2019.

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