Role of Judiciary in Constitution Making in Pakistan Thanks a lot everyone for your very helpful comments. I havent gone over all the comments in detail yet but will do as soon as possible. And will get back here as soon as I have gotten anything significant. Right now everything seems so tangled!

Thanks again and please keep commenting.

Role of Judiciary in Constitution Making in Pakistan Re: # 13

I did not mean to say that Pakistan should not be a democracy. I meant more in a positive rather than normative way i.e. Pakistan`s form of government IS (not that it should be) non-democratic rather than democratic. I make this assumption only for the sake of analysis. I think this assumption is justified because:

Pakistan has had military rule for more than half of its life.
None of the democratically elected assemblies have been able to complete their term.
There is historically documented evidence to suggest that even during democratically elected assemblies, the rule (decision making processes etc) has not been truly democratic.

Role of Judiciary in Constitution Making in Pakistan Thanks a lot for a number of interesting comments and criticisms. EinZeitgest, your suggestion of studying the form of government (Parliamentary or Presidential) system prior to analyzing the role of judiciary in that form of government is well taken. However, I would like to take it to an even more general level. (Comparison at more general level was also implied by insaanity). This is just an idea... and there might be holes in it which I am trying to detect through this debate.

Instead of analyzing the role of judiciary in Pakistan as democracy, one should attempt to look for the role of judiciary in Pakistan as non-democratic government. In a non-democratic government the power resides with specific persons and not with the institutions (legislation or constitutions) and the dictator is not going to last forever. Since all the actors in the society/political arena know that, no political actor would want to antagonize any potential person (or group of persons) who may hold dictatorial power in the future. And of course, each actor is trying to maximize their payoffs in this time period and the next. Can one look at Judiciary as one of those actors? The first question in order to address that is what is judiciary trying to maximize? Other than salaries of judges, one obvious thing is support -- and the power to be able to intervene/affect politics (and its own status) in future. (This itself is a good question to ask-- what have been the incentives of Pakistan`s judiciary.). In this framework, one needs to look at where does the support or authority of judiciary in Pakistan lie? Public sphere/public support? Executive? Constitution? political parties? civil society or intellectuals?

In order to analyze such a role, the main source of data can come from jurisprudence of the nine main cases that have addressed different constitutional questions in different and the political environment surrounding these cases. These cases are 1) Tamizzudin 2) Dosso 3) Asma Jilani 4) Begam Nusrat Bhutto (1977) 5) Muhammad of Saifullah Khan (1989) 6) Tariq Rahim (1992) 7) Nawaz Sharif (1993) 8) Benazir Bhutto (1997) 9) Zafar Ali Shah. Right now, what I have in mind is that I will see if the questions posed to courts were legal or political and was the court ruling (whether the question was legal or political) legal or political. Of course, the distinction between legal and political arenas is very difficult to make, especially in the case of court rulings but I can attempt to do that. The answers to these questions can shed light on who is favored by courts and in what period.

I think that this approach will take into account the comments made by HP and Hassansiddique as well. HP mentioned military as being the only pressure group, my quest would be to document the evidences and basis of that opinion. And to see if other pressure groups (as mentioned by HP) such as ``political parties, lawyers, bars association and other activists`` and general population (as HP implied that ``resentment in general population`` may be one concern, correct me if I am wrong) exerted any influence on court rulings. The answer to these questions will hopefully provide `some` explanation for some questions posed in the original articles.

Support maximization theory is no doubt applicable to all the forms of government. However, the sources of support for judiciary and dynamics of political activity will be different in a non-democratic form of government (or even in different forms of democracy. One may even surmise that these factors would be unique to every society). These questions, as pointed out by insaanity, are universal and not just specific to Pakistan.

Above is sort of a research proposal for a short paper that I am supposed to finish by the end of this month (!) but is a part of larger research project. I would really appreciate any comments on the theory, methodology, or generally if it raises any questions. Data is one concern since there are not a lot of good analytical books written on these cases before. So if you have any references that might help the research i would really appreciate it.

Acknowledgements: 1) The idea that the role of judiciary in Pakistan should be analyzed by assuming Pakistan as a non-democratic government rather than a democratic form of government was given by Professor Tullock. I elaborated further on it.

2) The list of nine cases was put together with the suggestions of a couple of distinguished lawyers and law faculty in LUMS.

Role of Judiciary in Constitution Making in Pakistan Re: # 1

I did not say that Pakistan has seen the kind of constitutional cases that United States has. The only reason for mentioning US was that Pakistan in not the only country where courts are active in constitution making (state-structure defining) processes to make the point that theory has ignored a very vital role of courts. The word `pre-constitutional stage` is however vague (that I have realized as I read further). Where does that imply that the process has been the same??

I have not made any claim in this article except saying that the role of courts in Pakistan state structuring has not been defined by any theory. And that there are fundamental questions which have not been answered before.

And..it is not called name dropping it is called referencing to theories and ideas of authorities in that area, trusting that readers do have a knowledge of what has been going on in the field. Besides I am not here to prove anything to anyone. I am undertaking an `academic` exercise, not an argumentative one. Being an aspiring academic at a very early stage, I would definitely avoid any sweeping statement till I have formed an opinion on any subject.

Why Democracy? Re: # 25, 27, 29, 41, 55

#25 burpinder

There is an inherent tension between public accountability and truth. It is not only the problem in politics but everywhere….even in knowledge and intellectualism itself. This is the difference between Said’s and Gramsci’s intellectual. And yes it is cynical and it is true. We need to live with these tensions and find the best route. Of course, preferences of outcomes are different for different people for whatever reason and hence the different opinions.

#27 Mantolives

I have taken graduate courses in Economics…am still taking graduate courses actually with some of the world’s best and I do get good grades…excellent sometimes. This paper was not written for an academic forum. And yes it is not a journalistic piece either. The purpose of the paper was to brainstorm different ideas for and against democracy (I appended a footnote with the article saying that I am writing this only to rouse up different ideas…mainly to get ideas for a larger research paper that I intend to write in following couple of months). There is no time limit on naseeb vibes or chowk, but there happens to be a time limit in my schedule. Next time I will try to make a better case.

About Pakistani constitution…have you looked up figures on who voted for and against Objectives resolution which ended up being an important part of 73 constitution? Besides, the constitution we have now has been affected by more than 7 judicial cases…starting with Asma Jilani v. Government of the Punjab and till the more recent Ali Shah v. Pervez Musharraf. Judiciary has evolved the constitution in Pakistan. Judiciary is not supposed to play that role in Constitutional Democracies. However, the question that what consequences the role of judiciary had on constitutional democracy in Pakistan is a very intriguing one and I happen to be researching on that right now. Havent formed any opinion yet though.

Burpinder #29

Quotes are rather interesting.

Ijaz gul #41

True..theories provide a normative sense ..through which positive conclusions can be drawn sometimes.

Temporal #55

VERE interesting question! We had a debate about China the other day in class. And Gordon Tullock who is pioneer of work on democracy and forms of government is completely confused as to where to put China in spectrum of things. It is definitely not a democracy and definitely not a dictatorship…not an imperfect democracy either. So the answer is….I don’t know! But research on this question should be very interesting.

Why Democracy? Re: # 19

It is not possible for a 1000 word article to `prove` anything. The relationships between economic development and the system of governance have been studied by political scientists as well as economists. The specific fields of economics that deal with this issue are public choice and constitutional economics. Even in those fields there are different people who are trying to do different things. One who are trying to find above mentioned empirical relationships and the other who are looking at theoretical underpinnings of different systems.

The arguments that I use in my article are mostly economics i.e. they employ economic philosophy, methodology and basic assumptions. My work on Pakistani constitution also employs the same philosophy and methodology. My attempt however is to bring in as my political and social factors into the analysis that are usually ignored by economists.

As far as my comments on Pakistani constitution are concerned, I confess that right now I am not in a position to make any comments. The only thing I can say is that judiciary has played a major role in Pakistani constitution, sometimes constructive and sometimes destructive. And the document that we call constitution is not really a constitution in true sense of the word because it has never obtained the consensus which is the spirit of any constitution, either unwritten (like British) or US (created and written). Why judiciary has played an important role and what are the consequences of it on constitutional democracy is the topic of the research that I am doing in the next few months. And hopefully will share it on chowk as well as on naseeb. Those papers would hopefully be more thought out than the present article.

Why Democracy? Re: # 12 and 13

I am great admirer of theory and ideas even if it is detatched from the real world. Theory and mathematics helps you to crease out the logical inconsistencies in an argument. A Theorist never claims that he has obtained the solution for all the world`s problems. But look what we have gotten starting from theory begining with unpractical assumption. Every applied work grows by hanging on to one theory or the other. Moreover, the burden of understanding the implications of these assumptions falls on whoever tries to implement the theory to reality not the theorist. Theorists have their own work to do and applied social scientist theirs.

Why Democracy? Re: # 11

Democracy is about representation...theoretically. It is quite safe to assume that every voter is rational. He may not know what is best foreign policy but he knows what is in his interest. A farmer in a remote village would fully know the impact of removing support prices for wheat, or abolishing sharecropping. As a result, everybody`s `interests` are represented. Following the same argument, proportional representation makes better form of government. Of course, there are information barriers (voter may not know the complexity of policy or for that matter credibility of the promises made by the candidate) that introduce biases but the consequences are not as detatched from the ideal.

HOWEVER, representation in debate is very different from majoratarian decision making processes. Once the candidates are selected they make decisions in the Congress and Parliament and the outcome is not only of debate amongst different `interest` but the of political bargaining, lobbying etc that goes on in the legislature. Downs argues against Propotional representation on the basis of above argument. His contention is that in PR system you dont know what coalition is going to emerge in the end so you dont really know what you are voting for. In the present system, this is a very plausible argument. I, however, despite the fierce disagreement of my colleagues and professor still stick to the representation idea. But I am begining to see the problems with it.

Why Democracy? Re: # 12

Ghazia is a she and not a he :)

A case of stereotyping?

Why Democracy? Re: # 9

You catch the argument at the right place. Yes economists assume that monarchs will maximize their material wealth. There is a difference between monarch and a dictator/authoritarian ruler. Monarchy, since it is inherited, will have a longer time horizon, longer than even the democracy. So the argument is that a monarch will worry about all the public goods which are required to maximize the total output over a longer horizon unlike democracies. The tax rate that he decides will be on the margin i.e. the tax rate where marginal increase in tax revenue is equal to decrease in total output due to decreased work incentive. The tax rate (mathematically) comes out to be higher than tax rate in a society where revenue maximizing is not the main objective.

But yes you are right, monarchs do not have long enough horizons, their information is limited and they have arguments in their maximization function in addition to wealth. Moreover, monarchies do not provide gaurantee against other monarchies and therefore as a result tend to be unstable. although this fact is not historically very robust.

and about the economics making assumptions....in order to understand you have to simplify and economics has been able to do it best in social sciences. The burden of understanding the implications of these assumptions falls on whoever tries to implement the theory to reality not the theorist. Again...only my position.

Why Democracy? Re: # 3

First of all, theory is a very good way of ironing out logical inconsistencies in an argument. Theory doesnt work perfectly as intended but that is not theory claims to do. What I presented were not statements but long established theoretical arguments. I assumed that they are well-known that I can afford to refer to them in passing. I apologize for being wrong.

A monarch can do whatever he wants. That makes him a monarch. Of course he would maximize his land holdings. Infact all the land will belong to him. However, he would give rights to the farmers because it will increase the produce of the land and thus the residual wealth. The `encompassing interest` argument says that the monarch will take care of the health of his subjects, their education, will provide roads and other infrastructure and will even care for the happiness of his subjects as long as being happier helps farmers to produce more goods for which the monarch is the residual claimant. The monarch will not confiscate all the property because that will provide negative work incentive and thus reduce the total output.

About cyclical voting and cultural pre-requisit
This is Arrow`s very well known argument. I will attempt to summarize it here as well as I can. When two or more individuals have to chose between more than two alternatives, they will show cycles in their choices in such a way that one choice is never better than the other two. You can make up a table of three alternatives between three individuals and show that there are instances that no alternative wins the majority as long as turned down alternatives can be voted upon again. As a result, majority voting cannot result in stable outcomes (if you google it, i am sure you will get a number of sites for illustration of `Arrows Impossibility theorem`). There are other philosophers (economists, political scientists) who argue that some theoretical problems with democracy can be solved by setting norms and traditions. According to that argument, most of the democracies in the world have worked because these norms have been set up. In the context of above problem of cyclical preferences and unstable outcomes, for example, it can be argued that if the alternatives which are turned down once are not offered for voting again, the cycling of preferences can actually be avoided.

About democracy and majority rule:
Different philosophers have given different conceptions/definitions of democracy...operational democracy, democracy based on consequences only, democracy based on representation...but generally (even sometimes in academic circles) democracy is equalled to majority rule. Perfect representation would require unanimity in every decision. But since there are costs associated with perfect unanimity, majority decision making is the easier option but not the only option for democracy. Philosophers differ in this view. I tend to take the above position.

I hope I answer all your questions.