Democracy’s revenge

Published: December 4, 2012
The author is a Lincoln’s Inn barrister practising in Islamabad and holds a degree in Economics and Literature from Bryn Mawr College, US

The author is a Lincoln’s Inn barrister practising in Islamabad and holds a degree in Economics and Literature from Bryn Mawr College, US

Are you like me, troubled by reports of the tussle between the government and the Supreme Court over the appointment of judges to the Islamabad High Court which, in turn, has a direct impact on which judge may be elevated to the Supreme Court? Do you find yourself wondering where this apparent tug of war may be heading or if it is even appropriate or normal? Do you find yourself worrying about the implications of these actions on the future of the judiciary or even of democracy itself? If you’ve answered yes to even one of these questions, read on. The story that follows may be instructive.

The following account of Franklin Delano Roosevelt’s policies is drawn from Brian Z Tamanaha’s Law as a Means to an End: The threat to the Rule of Law. The year is 1937. Despite his promise of a “New Deal” which had won him a landslide election victory four years ago, Franklin D Roosevelt, the 32nd president of the United States, has been unable to deliver economic prosperity to a nation struggling to recover from the Great Depression. It’s not his fault though. It’s the wretched US Supreme Court, which has derailed all his efforts by striking down key pieces of legislation designed to find solutions to the ongoing economic crisis and to mitigate its most serious social consequences.

Although Roosevelt is angry, he does not address the issue publicly. It’s election year and he does not wish to give credence to the campaign theme of his Republican counterparts that he always gets his own way, even if it comes at the cost of the Constitution. Roosevelt’s strategy pays off. Not only does he win the next election by a historic margin but also, the Democrats obtain a majority in both the House and the Senate.

Interestingly, however, Roosevelt’s victory is not only a defeat for the Republicans. It is also seen as a resounding rebuke of the Supreme Court. In the words of Donald Grier Stephenson (in his book, Campaign and the Courts: The US Supreme Court in Presidential Elections), “Although they appeared on no ballot, the Justices plainly lost the elections… Voters overwhelmingly validated what the Supreme Court had invalidated.” Emboldened by these results, within weeks of his re-election, Roosevelt announced a plan to create additional positions for any judge over the age of 70.

At first, Roosevelt justified his plan as a way of solving the backlog in the processing of cases, which he attributed to the slower working pace of the aged judges. Within a month, however, he himself stated what was increasingly becoming evident to all: by creating more seats on the Supreme Court, he would be able to appoint new and, more importantly, compliant judges, thereby effectively ending the Court’s opposition to his New Deal programme. Unfortunately for Roosevelt, however, this idea proved to be a disaster.

The plan was killed in the Senate in July 1937 but not before tarnishing Roosevelt’s reputation as a generally astute politician. He was accused of deception. The press went so far as to term his plan “a frontal attack on the Court by an overreaching dictator and a threat to the nation’s historic tradition of an independent judiciary”. Even members of his own party and the very public that he sought to benefit through his New Deal legislation, rallied against the plan on the ground that, in attempting to tamper with the Court’s institutional structure, Roosevelt had just gone too far.

The parallel between the Pakistani and American situation is evident: in both cases, the executive’s attempt to interfere in the appointment of judges is merely a bid to achieve its own ends. The tussle, however, is not abnormal, not unique to Pakistan and certainly not a catastrophe either for the judiciary or democracy but merely a process through which both are strengthened. In the American example, when it was displeased by the judiciary’s conservatism, the public elected a liberal president. Equally, however, when this same liberal president threatened the foundations of democracy, popular opinion turned against him, forcing him to retract. There were no favourites and every one was treated equally. This, then, is democracy’s ultimate revenge.

Published in The Express Tribune, December 5th, 2012.

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Reader Comments (5)

  • Falcon
    Dec 4, 2012 - 11:30PM

    An informative article. On a side note, do economics, literature, and law (author’s profile) have anything substantial in common?


  • Huma
    Dec 5, 2012 - 12:39AM

    The only problem here amber is, that when we in Pakistan go to the polls its not necessary that democracy will prevail…. it never has. And thats when the ultimate revenge lies in shambles, unfortunately.


  • wonderer
    Dec 5, 2012 - 11:38AM

    A very informative and interesting article. The lesson I would draw from it is:

    Well educated voters are essential ingredient of a strong democratic society.


  • Dec 5, 2012 - 12:49PM

    We in Pakistan seem to be at a point where both the Judiciary and Executive are engaged in a prolonged game of Chess.

    Both the institutions seem to be realizing the extent of their power and from time to time we see one trying to assert itself over the other.

    One does hope that the balance of power finally ease out and both the Institutions begin to respect each others authorities and find common-ground to work on.

    Stunts such as these even though justifiable for the sake of an argument are more or less de-stabilizing insofar as they can have an adverse effect on the Country and make it seem to the common man that the Institutions which are meant to govern aren’t doing their job right.

    Uncertainty and ambiguity should best be awarded and problems such as these should be resolved amicably for the good of the people of Pakistan.


  • Manoj Joshi India
    Dec 5, 2012 - 9:56PM

    The Islamic Republic of Pakistan will need time to develop into a Liberal Islamic Democracy wherein the rights of the minorities are safeguarded in equal measure as the majority. The ongoing tussle between the Executive and Judiciary is a passing phase towards growth of the democratic system. Unfortunately long spells of the regime of the military junta in Pakistan has undermined the democratic and liberal social systems and for democracy to take deep roots time shall be needed. There had been expectations earlier too during the 1988 to 1999 period when democracy had been restored in the Islamic Republic which was unfortunately derailed with on 12th October 1999 with the Military having seized power. Although critics have debated on the democracy of Pakistan having referred to it as a managed democracy which has unfortunately been the case in the past there seems an apparent change in the present. The present government in Pakistan has been able to complete the five year tenure in the National Assembly which is no small an achievement and perhaps the beginning of an encouraging phase of democracy within The Islamic Republic of Pakistan. Although it will be too early to arrive at any conclusion nevertheless the signs or indications both political, social and economic are encouraging and seem rather bright. The thaw in Indo-Pak relations accompanied with a steady and consistent improvement of bilateral ties between the two neighbours is yet another achievement of the PPP Government in Pakistan as well as the UPA in India. The shift towards development of economic relations between two nations that have shared a not very cordial past is a development that cannot go unnoticed. The growth of democracy in Pakistan is a gradual process which should continue and during the next few decades can reach a level to reckon with as a democracy. The nation requires a society that is liberal and free from the control of the religious fundamentalists and a government that offers a stable governance to the nation.


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