When the madness passes

As I write this column, the streets of Islamabad are still occupied by supporters of Imran Khan and Dr Tahirul Qadri. And both leaders are still occupying their respective containers.
But assume for a minute that this storm too will pass, that battered and bruised as it is, parliamentary democracy in Pakistan will survive to fight another day. Does that mean we can (or should) forget about what the container-wallahs are saying?
Well, the answer is yes and no.
Imran Khan’s main argument is that the current parliament is illegitimate because it is the product of rigged elections. That argument is rubbish.
Let’s start with the basics. The way polling works in Pakistan is that empty ballot boxes are brought to a polling booth. Each party is allowed to have polling agents at the booth. Those agents certify that the ballot boxes are empty. The ballot boxes are then sealed and placed in the middle of the polling booth. Polling agents are also allowed to challenge the identity of every voter who shows up. And the votes themselves are cast in public, in full view of the polling agents. When the polling time ends, the ballot boxes are opened in front of the polling agents and the ballots are then counted in front of the polling agents. At the end of the counting, each and every one of the polling agents signs off on the voting tally.
Obviously, this is not a foolproof process. However, it is a pretty good process and one whose kinks have been worked out overtime. Thus, if somebody is going to allege that the process was hijacked, he needs the following: (1) a theory of how the process could have been hijacked; and (2) evidence that the process was indeed hijacked in the manner suggested.
In the instant case, Khan lacks both elements of a convincing case. He has no theory as to how the polling process was rigged in favour of the PML-N. And he has no evidence.
Lest you think I’m being too harsh, let’s look at the facts. Following the 2013 elections, PTI candidates filed 58 election petitions – 30 in relation to National Assembly seats and 28 in relation to provincial assembly seats. Out of these 58 cases, 39 have been decided. And out of these 39 decided cases, only two have been appealed to the Supreme Court.
The PTI response, to the extent one can discern a coherent argument, is that the whole process of deciding election disputes is fundamentally biased against them. If so, let me repeat my question: how?
Election petitions are adjudicated by retired high court judges appointed by the Election Commission. The Election Commission itself consists of five retired high court judges appointed with the consent of both the PPP and the PML-N. As already noted, appeals from election tribunals lie to the Supreme Court. And not even the PTI has directly accused the current Supreme Court of being biased.
What then are we left with?
Well, what we are left with are the following queries: when is revolution justified? And are there any such conditions justifying revolution in Pakistan?
Let me try to answer the first question by looking at it through a judicial lens. Most democracies today embrace the concept of a court which has the right to strike down legislation. Certainly, our constitution and our legal history embrace that concept. At the same time, given that laws have to be passed by a majority of the representatives of the people, how does one justify a situation in which a few unelected persons can overrule the will of the people?
Alexander Bickel, the famous legal philosopher, defined this problem as the “counter-majoritarian” dilemma. And in countries where people take representative institutions seriously, this problem too is taken seriously.
One minimalist answer as to when judicial intervention is justified is based upon the judgement of Justice Harlan Fiske Stone of the US Supreme Court in a 1938 case, US v Carolene Products. Or, to be more precise, footnote 4 of that case. Footnote four has sometimes been referred to as ‘the most famous footnote in constitutional law’ and has provided fodder for legal arguments for decades. Stripped of all verbiage, what footnote four says is this: courts are not to strike down legislation unless it is impossible to find any rational basis for it. On the other hand, where legislation appears to discriminate against minorities, especially to keep them from participating in the political process, then a heightened degree of scrutiny (and intervention) is justified.
Let me simplify footnote four even further: so long as the legislature is playing by the rules, courts shouldn’t interfere unless the law is utterly insane. But if the legislature bends the rules to keep people out of power, then the courts must be vigilant and interfere.
What does all of this have to do with Pakistan? After all, Pakistan does not have the kind of deep and prevalent racism that marred the United States.
Well, Pakistan may never have had slavery but we have certainly had millennia of extremely unequal relations between the classes. Even today, Pakistan is a deeply divided society in which inequality runs deep. This is not a society which embraces the common man. More importantly, this is not a society whose political institutions are structured to be responsive to the common man.
In Pakistan, political power is concentrated in the hands of a tiny few. All decisions at the federal level are taken by the prime minister or by a handful of his associates. All decisions at the provincial level are taken by the relevant Chief Minister or by a handful of his associates. Given Pakistan’s ‘first past the post’ system, a party either wins an entire province or wins nothing. In turn, this means any party with a secure hold on either a province or the federation can simply ignore whatever its rivals want.
The standard solution to this concentration of power issue is to call for proportionate representation. Unfortunately, the only way proportionate representation works is if there is a high degree of enlightened self-interest amongst elected representatives. Without that enlightened self-interest, proportionate representation only results in endless bickering and deadlock.
In Pakistan, our parliamentarians are barely under anyone’s control. Those of us who are not in our teens remember a time when ‘horse-trading’ of parliamentarians was a serious problem. Installing a proportional representation system in Pakistan would therefore result in complete chaos.
The alternate solution is to keep the ‘first past the post’ system but break up the power structure. In other words, have a ‘first past the post’ system but either increase the number of provinces or devolve real power down to the district level. That way, the resulting system can be both functional and yet more representative.
More importantly, the constitution itself is very clear in this regard. Article 140A of the constitution says that every province shall establish a local government system and devolve “political, administrative and financial responsibility and authority.” Till date, no province has done this; not even Khyber Pakhtunkhwa.
Let’s go back to Imran Khan now. What he should be asking for is not the dissolution of parliament but a more representative democracy, one with an effective local government system. Yes, his party did get the second-largest number of votes in the 2013 and yes, it doesn’t have much to show for it in terms of concrete power. But that isn’t because the elections were rigged. That is because the system is rigged.
Khan has a right to demand that the system be changed. He has a right to demand that the constitutional mandate in favour of local government be respected and implemented. What he does not have is the right to destroy what little democracy we do have.
The writer is an advocate of the Supreme Court of Pakistan.
Twitter: @laalshah