UK Constitutional Law Association

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Menaka Guruswamy: Of Generals, Judges and Constitutional Democracies

MenakaOn July 3, General Fattah al-Sisi, the 58 year old Chief of the Egyptian Army announced on television that the army had removed President Mohammad Morsi from power and suspended the constitution. In this same televised address he informed the people that the Chief Justice of Supreme Constitutional Court would be the interim President till fresh elections took place.  Egypt had been in the throes of protests for a few days prior to this annoucement. The renowned Tahrir Square has been the site of demonstrations protesting against President Morsi for a failing economy, the increasing Islamism of the state, and for expanding  his own powers. The democratically elected President Morsi, who belongs to the Muslim Brotherhood, had been a  source of anxiety for secular minded Egyptians. The Muslim Brotherhood founded in 1928 in Egypt is a Islamist religious, political, and social movement that has spread through much of the region.

After a momentous uprising of the people in 2011 that ousted long term autocrat Hosni Mubarak, Egyptians withstood nearly seventeen months of army rule.   Soon after, President Morsi came to power claiming around 51 per cent of the votes cast in an election, which was widely regarded as free and fair. However, he grew unpopular as he was perceived to have pushed through a constitution that was neither inclusive nor egalitarian but simply reflected the values of the Muslim Brotherhood.  Eqypt has a history of military coups. And the military and the Brotherhood have been long standing allies in Egypt. For instance, in 1952 when the monarchy was overthrown by the military the Muslim Brotherhood supported this coup.

Therefore, it is safe to say that the Muslim Brotherhood was an unlikely  catalyst for democracy.  Perhaps no theocratic movement really is the appropriate choice for a democratic framework. Historically, the democracies that have endured have been those that formally separated religion and state.  These countries have placed their their abiding rationale as being located in largely secular constitutions.

Closer home the rather different trajectories of enduring democratic constitutionalism that have characterised the Indian and Pakistani experiences illustrate the consequences of ignoring the lessons of history. India’s rather efficient completion, in around a hundred and fifity working days, of a secular constitution helped the country to quickly pick up the habits of democracy. These habits include investing political and social capital in elections, political parties and parliamentary debates.  Undeniably, the quality of both political parties and parliamentary debates in contemporary India leaves much to be discontent about.  Yet, despite many problems, democratic constitutionalism came to be firmly entrenched in independent India.

By contrast, Pakistan’s first constituent assembly was dissolved by Governor General Ghulam Mohammad as it was nearing completion of a draft constitution in 1954.  Pakistan was therefore denied the chance to produce a constitution grounded in consensus. Perhaps as a consequence of this, Pakistan’s journey as a new country was marred by three military coups and the suspension of three constitutions. Each military dictator coming to power after deposing an elected government suspended the constitution of the time.  A number of facotrs encouraged, or facilitated, the emergence of the Army as a constitutional actor.  Western governments invested their faith in the military as a modernising force in Pakistan. Samuel Huntington captured these sentiments well when he wrote that the military in newly decolonised states were a welcome instrument of modernization and change.  And the military fuelled by support from traditional elites like wealthy land lords, religious figures, and its own accrual of political power in tandem with staggering budgetary allocations  grew into the commercial goliath that it is. Ayesha Sidiqqa’s brave and rigorous book, Military Inc., tells the story of the rise Pakistan’s military as a commercial giant.

However, militaries the world over have rarely acted as progressive forces of change after replacing elected governments. As the scholar Robert Price reminds us, arguments of the military being harbingers of change and stability are not located in empirical or analytical studies. According to him, these conclusions are arrived at merely by ascribing qualities like structural cohesiveness, internal discipline and nationalism to the military.

The Supreme Court of Pakistan played its own role in debilitating constitutional democracy by legitimising each military coup  often invoking grounds like ‘revolutionary legality’  (in State v Dosso and Anr, decided in 1958) that are unknown  to thoughtful jurisprudence. The Supreme Court more recently on May 19, 2012 in a decision by three judges, including Chief Justice Iftikar Mohammad Chaudhury disqualified Prime Minister Yusuf Raza Gilani from serving in office, by convicting him for contempt of court.  The consequences of collaboration of elites in Pakistan with the military, meant that there was little investment in democratic institutions and a disregard was cultivated for parliament. And it is only more recently in the last four odd years that Pakistan has had a long term of civilian administration uninterrupted by a military coup. Therefore, the  consequences of the non-completion of a constitution, the lack of elections and civil-military relations being dominated by the military, in the early years post-independence,  took over fifty more years to remedy.

Egypt’s own Chief Justice of the Supreme Constitutional Court, by accepting the position of caretaker President following the actions of the Egyptian Army, has struck a blow against the fundamental principal of separation of powers. Such a principle establishes separation between the executive, legislature and judiciary with each checking and balancing the other. Judges of apex courts in enduring democracies do not fulfil executive roles, least of all those of Presidents and Prime Ministers.

The holding of high executive office is a trend that is, unfortunately, gaining popularity. In Nepal, numerous changes of government, a failed constitution-making process which the constituent assembly could not complete, characterised its initial years post the fall of the monarchy.  The Chief Justice who stopped the endless drafting process then accepted the position of Prime Minister of the country. Such moves by the Egyptian and Nepali Chief Justices dismantle that most basic prerequisite of democracies: the need for an objective and watchful judiciary. Judiciaries maintain constitutions by consistent interpretation and  by protecting the citizen from  unconstitutional actions. By these actions they contribute to enduring democratic constitutionalism, but a judge who sits in the executive branch cannot fully play this role. When they fulfil political roles they tear at the fabric of democratic constitutionalism.

Egypt’s predicament throws up a fascinating question. What are the long term consequences of an elected government being deposed by a military riding on a magnificent wave of popular discontent? Such discontent was symbolised by signature campaigns and street protests – both great symbols of democratic dissent. Militaries after all can provide quick solutions through use of force. And this makes them superficially attractive agents for change- unconstitutional though it might be.  However, democracies and constitutions allow for  change slowly. They enable change through political and social movements,  a commitment to franchise by voters and  objective constitutional interpretation by courts. None of these methods can provide the quick change of regimes that military might can.

Constitutions and elections are rare and fragile entities. When trashed early on in the existence of new nation states, they subsequently either never take root or the harm done takes a long time to heal. The premise of constitutional democracy is incremental change, not support for convenient military coups. Discontent with constitutional provisions can be addressed by amendments to the text. Amendments do away with the need for revolutions. History teaches us that when courts capitulate or collaborate in unconstitutional acts, and when faith is invested by societies in militaries and not in change through elections and political movements- then only Generals benefit. Not,  ‘We the People’.

                                                Menaka Guruswamy practices law at the Supreme Court of India and is a D.Phil Student at Oxford University.  

Suggested citation:  M. Guruswamy, ‘Of Generals, Judges and Constitutional Democracies’ UK Const. L. Blog (19th July 2013) (available at http://ukconstitutionallaw.org)

One comment on “Menaka Guruswamy: Of Generals, Judges and Constitutional Democracies

  1. John D
    July 19, 2013

    I recently read an article on pay levels for elected representatives in different countries. I was astonished to see the incredibly low levels of pay that are made to nationally elected representatives in countries like Pakistan, India, Sri Lanka and other similar countries. Little wonder, then, that these countries’ electoral and political systems are so shot through with corruption. How else can candidates in these countries raise the money to campaign effectively?
    As well as matters of constitutionalism, you might want also to look at the practicalities of making political systems work, including adequate remuneration for people in public office.

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This entry was posted on July 19, 2013 by in Comparative law, India and tagged , , , , .
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