Democracy or rule of law

So the time has come whence the citizens of Pakistan need to decide what they want: democracy or rule of law.

The verdict of the Supreme Court (Jan 10) re the implementation of its own NRO judgment, in option 6 reads:

"The constitutional balance vis-à-vis trichotomy and separation of powers between the Legislature, the Judiciary and the Executive is very delicately poised and if in a given situation the Executive is bent upon defying a final judicial verdict and is ready to go to any limit in such defiance then instead of insisting upon the Executive to implement the judicial verdict and thereby running the risk of bringing down the constitutional structure itself this Court may exercise judicial restraint and leave the matter to the better judgment of the people of the country or their representatives in the Parliament to appropriately deal with the delinquent. After all the ultimate ownership of the Constitution and of its organs, institutions, mechanisms and processes rests with the people of the country and there may be situations where the people themselves may be better suited to force a recalcitrant to obey the Constitution. It may be advantageous to reproduce here the relevant words of the Preamble to the Constitution of the Islamic Republic of Pakistan, 1973: "we, the people of Pakistan -- ----Do hereby, through our representatives in the National Assembly, adopt, enact and give to ourselves, this Constitution".

But the fact is that this time was around the corner, and lingering, since the present populist "democratic" civil political government took to power and started defying the pre-requisites of democracy the first and the foremost of which is rule of law.

It is not new or unique that any political party basing its politics on populism and claiming to be democratic does not resort to such tactics which and the like of which Pakistan Peoples Party has been playing and using since the day it won general elections in February 2008 - at least for this tenure of it in the government.

Actually, populism is such a forceful instinct which never tolerates any traditions, norms, principles, rules and laws to be putting hurdles in its wayward and rowdy sojourn. Just like a populist political party, PPP has never been in a mood to be abiding by such things, even the ones it itself made or promised to follow on its own. The extraordinary example is the 1973 constitution, in the making of which it may be given most of the credit, but it is the same party which defied it from the very first. The crux of the problem is that populism never ever comes in line with rules and laws, be it for a while.

Another trait of populism is it recognizes and respects no institutions, constitutional or otherwise, but its own whimsical institutionalizations. The same has been the case with the PPP government vis-à-vis especially the Supreme Court, or higher courts in general, Election Commission of Pakistan, Higher Education Commission, etc. They were treated as obstacles in its way to the goals, good or bad, legal or illegal, constitutional or unconstitutional, it wanted to achieve at any cost.

This is what is singularly characteristic of the populism: it behaves in a manner as if it is itself, or it has embodied itself into the same rues and laws, and the institutions which it is being made or forced to follow. The behavior of both the present PPP government and the party is no different. The statements and the actions and the steps the president, the prime minister, and other ministers and high officials appointed by them has been making and taking prove the same point well.

Thus the day the PPP prime minister, and then the president sworn in, rather well before that, it was evident there is going to be a choice of "either, or" between democracy and rule of law which finally has to be made by the institution which the constitution empowers to protect itself.

The time to make this choice has come.

Viewed from the point of view of constitutionality, which most of the observers and analysts conspicuously lack not only in such issues but almost in all issues, it is not a situation of making a choice: either democracy or rule of law. Who would say laws and the constitution need not be followed! Who would say democracy means trampling of the rules, laws and the constitution? Who would say democracy should flourish at the cost of the laws and the constitution?

A democracy which ridicules and disobeys rules, laws and the constitution is but a criminal democracy, like the one we have in Pakistan. Democracy strengthens, and must strengthen the rule of law if it is democracy in any definition of the word. Without rule of law, democracy is 'but great bands of brigands' as St. Augustine said about a kingdom without justice.

Thus, it's no question of making a choice between democracy or rule of law, but following the rule of law. If the rule of law is saved, democracy will be saved, but if the rule of law is sacrificed, democracy will transform itself into a rule of persons intoxicated with populism!

  

[This article was completed on January 10, 2012.]

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