A democracy’s architecture is that of deliberate friction. Not a system glitch, this is its most vital safeguard. The interplay between the executive, legislative and judicial branches guarantees the separation of power. This ensures oversight and prudent governance. Most crucially, it is a safety valve against the concentration of power in any single entity.
Legitimacy and moral authority are a government’s blood and soul. Its right to exercise power is contingent upon an absolutely fair and democratic process that leads to its existence and, subsequently, its adherence to the rule of law. A government burdened by a legitimacy deficit resorts to coercing the same through increasingly desperate and authoritarian measures.
The most insidious of these is judicial capture. An arbitrary act of self-preservation and perpetuation, it ultimately dismantles the very foundations of a society. An incremental process, this takeover process does not happen overnight. It involves multi-faceted machinations including controlling the process of appointing judges and packing the courts with loyalists.
This blueprint saw measures targeting the judiciary and freedom of speech. Unfolding at a reckless pace, it led to the 26th Amendment that effectively eliminated any pretence of separation of powers. The 27th could well have been the proverbial last nail. Not to be; we are told a 28th, with more to come, is in the offing and all to benefit us, the people.
Writer and academic C S Lewis’s essay ‘The Humanitarian Theory of Punishment’ describes this ‘magnanimity’ as a dangerous illusion that leads to unlimited tyranny. He writes: “Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive…those who torment us for our own good will torment us without end”.
Our history is a grim textbook of the judiciary buckling under external pressures. The maxim “quod non est licitum in lege necessitas facit licitum” – that which is otherwise not lawful is made lawful by necessity – is attributed to Henry de Bracton, a medieval jurist. It was originally used to justify minor trespasses to prevent greater harm.
Our judiciary adopted and morphed it into a decimating Doctrine of Necessity. An antithesis of justice, it deemed unconstitutional power grabs legal. In an ironic twist, our would-be democrats have helped capture the judicial system itself.
The recent amendments have subordinated rule of law and justice to the arbitrary will of the ruler. With a change of guards, the doctrine of necessity is now being propagated by our would-be democrats. An independent judiciary is central to liberty. Its capture is not just Machiavellianism at its worst; it is the vanquishing of a nation’s soul.
This travesty is built upon the utopia of strong governance with swift delivery mechanisms. The muscle-flexing impregnable state that emerges from such a takeover is, in reality, a deeply fragile one. The centralisation of power is a dead weight that creates a system incapable of adapting or self-correcting. Insulation from accountability, criticism and feedback guarantees its doom.
This is not limited to administrative affairs but permeates the economy and society as well. Both require a predictable legal framework, a trustworthy dispute resolution mechanism and, above all, the rule of law. Capital is notoriously risk-averse. It flees places bereft of justice and rule of law.
The force-released IMF’s Governance and Corruption Diagnostic Assessment (GCDA) springs no rabbits. It points towards an elite capture that has spawned corruption. Terming it a fraction of the total loss, the GCDA highlights recoveries of Rs5.3 trillion in the last two years alone.
Describing our judiciary as one of the most corrupt institutions, it points out that its integrity is critical for stability and sustainable economic recovery. Each page of this 186-page report is a contradiction of the state’s utopian claims and a stark indictment of this ruling system.
Our constitution is rooted in Islam. Tellingly, its most eminent custodians remain the most Honourable Justices Alvin Cornelius, Dorab Patel and Rana Bhagwandas. The principle that no one is above the law is a fundamental tenet of Islam. The 27th Amendment overrules this doctrine and grants absolute and extensive legal immunity to individuals.
This legal shield is innately unjust and fundamentally inhuman. It creates a caste system of legal protection that undermines the core tenets of accountability, not to mention that immunity begets impunity. To uphold the cardinal principles of justice, the law must apply uniformly to everyone.
The constitution is a foundational covenant, not a malleable document to be altered at will. Like the frictional cogs of democracy, the amendment process is deliberately demanding, requiring exhaustive deliberation and broad consensus. This is to ensure that changes adhere to the essence of constitutional law.
The 27th Amendment of the US Constitution, proposed in 1789, pertained to the salaries of members of Congress. It was ratified in 1992 after over two centuries of public and legislative debate. This deliberately lengthy process highlights the respect for constitutional sanctity and permanence that has starkly eluded our recent roller-coaster amendments.
A democracy operates under a constitution that prevents the government from wielding arbitrary or secret power. Its primary function is to serve as a social contract that establishes a framework for governance while simultaneously limiting state power and protecting individual liberties. Constitutions are not instruments for controlling people; they are designed to restrain the government.
Our preference for slathering of the constitution points towards the systematic refusal to accept and address what remains essentially a political issue. This results in Nietzsche’s profound words: “A state is the coldest of all cold monsters. Coldly lieth it also and this lie creepeth from its mouth; I, the State, am the people”.
The writer is a freelance contributor. He can be reached at: [email protected]
