Whose will is it anyway?

Our autocratic civilian rulers got over their usual squabbling and came together to whizz through parliament two important statutes: the Constitution (21st Amendment) Act, 2015 and Pakistan Army (Amendment) Act, 2015. Thereby, the politicians have handed over to khakis a responsibility previously entrusted to judges: conducting criminal trials of suspected terrorists. This seems to be the beginning of yet another round of khaki resurgence in this country. The only force that still offers any hope of reversing the downslide is the constitutional courts, particularly the Supreme Court of Pakistan.
Soldiers sitting as judges over non-soldiers do not make for an independent judiciary; they make martial law. You don’t have to be a constitutional lawyer to know this. ‘Independence of the judiciary’ is a promise that has been made to us by every single constitutional document written in this country since the Objectives Resolution of 1949. Yet, it took very little for politicians to explicitly negate that promise. Initially, the idea created quite a storm. Many lawyers and journalists raised their voice against it. During the rushed parliamentary debates, some lawyer-turned-politicos with a prickly conscience even shed public tears at what their party leaders were making them do. However, now that the bill has been passed, even erstwhile stalwarts are gone silent.
A prominent lawyer with unimpeachable liberal credentials recently offered, through these very pages, a word of advice to the Supreme Court. The court, as everyone knows, will soon be hearing challenges against the constitutionality of the 21st Amendment. He counsels: “[I]t is…time to consider the observation … [that] “It is not the job of the courts to protect the people from the consequences of their political choices.” While the author painstakingly avoids taking a clear stand, it is not hard to see where he is pointing: just as the US Supreme Court left Obama’s healthcare law

intact, so too should the Supreme Court of Pakistan leave Nawaz Sharif’s military courts law intact. His reasoning: military courts amendments represent the “will of people”; if the courts were to strike them down, they would be sinning against democracy.
At first glance, this seems to be an attractive argument. But think deeper and gaps in this reasoning become apparent. It’s based upon simple democratic theory but has little to do with the facts in front of us.
True, the supreme source of politico-legal authority in a democracy is the ‘will of the people’. But conceding this simple principle does not necessarily mean we can dispense with all further jurisprudential inquiry. While the 21st Amendment Act has admittedly received a more than two-thirds vote from parliament, does that necessarily make in an embodiment of the ‘will of the people’? Before making this leap of logic, we must ask some serious questions: Who are the ‘people’ whose will is deemed supreme? Through what means is the will of the people to be measured? Which notion of ‘will’ are we referring to? These questions are not as simple as they first sound.
First, who are the ‘people’? Democracy used to be the rule of the demos, but where are the demos today? In ancient democracies, such Athens at the time of Socrates, the people, the demos, meant the free citizens of polis, a few-thousand-strong close-knit community of individuals who would – when the occasion called for it – come together as one body, assembled in the agora (the city centre). The people were a unit and their will could be determined.
A modern mass democracy, however, has no such ‘people’; it comprises hundreds of millions of individual citizens who have never, and will never, even see each other. The ‘people’ in a modern democracy is largely a theoretical construct. Like other theoretical constructs, the idea of the ‘people’ serves a useful purpose. But it’s validity must continuously be questioned in the light of empirical realities. Are autocrats just trying to take us in, using the name of the ‘people’? Or, is it that the entire people are actually behind them?
Next, through what means is the will of the demos to be measured?
In ancient democracies, on any matter of public importance, the will of the people could be determined rather precisely through a simple vote count in the public sphere. Not so today. We do not call upon the entire citizen body to vote upon law or policies made in their name – except in the rare eventuality of a referendum being called. Instead, we allow only a few hundred representatives who enjoy the right of audience in parliament to speak on everyone’s behalf. It is through their conduct that we assess the people’s will. But the parliamentary number game, it must be remembered, is only a proxy for the will of the people. Proxies have limitations: situations can arise where the will of the people differs from that of their own representative. So can conflicts of interest. Or decisions made under duress.
Finally, consider this: which notion of ‘will’ are we referring to?
Human will, as we all know, is rather fickle. A mere public mood instilled through media sensationalism, often working at the behest of power brokers, is one thing. Public ‘will’ that emerges from a fair and informed debate, through extensive public reasoning, is quite another. It swings from one position to another. It changes fast. It is affected by information.
The history of democracies in the 20th century calls for vigilance. The transmogrification of Weimar Republic into Hitler’s Fuehrer land during the 1930 is only the most horrific example. How quickly democracy degenerates into the tyranny of a fickle electoral majority. To avert such disasters, jurists must continuously think about what the ‘will of the people’ really means in each specific context. Post-WWII constitutional developments – Germany’s entrenched constitution, India’s basic structure theory – are all models to consider seriously. The constitution must not be construed in purely procedural terms.
Court Room 1 will soon be thundering with the attorney-general’s voice, seeking to defend this disfigurement of our constitution. The 17 unelected men who grace the bench of our Supreme Court will be urged by him to keep their hands off an amendment passed with more than a two-thirds majority of parliament – all in the name of the will of the people. Before buying into such ideas, the Supreme Court would be well-advised to dig deeper into the empirical basis of the attorney-general’s claim. They should forget democratic theory and think hard facts for a moment.
Did the present parliamentarians win their seats campaigning in favour of military courts? In fact, is it not true that they had promised to send the khakis back to the barracks? Could setting up military courts be the ‘will’ of a people who had, until a month ago, not even heard about the proposal for military courts – and who have still not had a chance to publically debate the implications of this proposal? Is the proposal anything more than the will of at best a total of five men – the three Sharifs, Zardari and Altaf? True, a two-thirds majority in parliament voted in favour. But did the parliamentarians, some of them teary-eyed, even have a choice? Weren’t they constitutionally beholden to toe the line set by the five big boys?
It is not the job of the courts to protect the people from the consequences of their political choices. Agreed. But this begs the question: are the military courts really the people’s political choice or that of their politicians? How do we know this? Shouldn’t we then seek to vindicate the fundamental and time-honoured values of a constitution from such ill-considered incursions? These are questions worth asking before we can be sure whose will we are defending.
The writer is a lawyer and researcher based in Islamabad.
Email: umer.gilani@gmail.com