Voting Efficiently: Judges, Generals, and Manifestos

2018-07-24T22:59:49+05:00 Asher A. Qazi

Why do people vote? This is a question, which has puzzled thinkers for some time. One vote can hardly change the outcome of a national election. In fact, the probability of this happening is so low that one wonders why anyone would ever make the effort.

Consider, for instance, a country with 100 million voters (Pakistan has roughly 106). The choice is between two parties, expected to receive anywhere between 45%-55% of the vote. A close race by any standard! In this case, the probability of one vote swinging the outcome of the election is 1 in 10 million. Tough odds.

Then, in a country like Pakistan, one also needs to consider the costs of voting; going to the voting station, standing in line, and, in some areas, also putting one’s life at risk. It should thus come as no surprise that the voter turnout is usually low in Pakistan, typically less than 50%. But a 45-50% turnout is still high – one may wonder why anyone would ever come out and vote?

To explain this behaviour, scholars have often tried to identify the direct benefits, which a voter receives from the act of voting (feeling of civic duty, ideological satisfaction, etc.). These benefits are important and force many to come out and vote, even if each such act individually makes no difference to the outcome of the election.

On July 25th, 2018, we can expect that roughly 45-55 million Pakistanis will vote. ECP estimates are higher and are, in part, based on the exceedingly high number of new voters. Since 2013 roughly twenty million new voters have been registered. What makes these new voters tick? Who will win the election?

Niels Bohr, physicist and Nobel laureate, is reported to have said: Prediction is very difficult, especially about the future. He is right. With so many unknowns, how can we ever safely predict the outcome of an election? (Think Brexit and the election of President Trump.)

We can, however, still discuss how a voter should behave if he or she is acting rationally. Imagine a voter, V. V, for some reason, is upset about the military’s role in politics. V is also concerned about the growing influence of the Supreme Court and its coordination with military interests. How should V vote?

For this purpose, we need to first consider the preferences of the main national political parties in Pakistan. Which party is most likely to push for the agenda described earlier? Surely, first and foremost, the PML (N) comes to mind. Though their manifesto does not even once mention the Supreme Court, we know how disturbed the party’s leadership is with it. Similarly, they are convinced that the military is targeting them (consider their slogan: “vote ko izzat do”) and would seek to address this threat.

The PPP too might push against the military and the Supreme Court. Its manifesto specifically proposes reform of Article 184 (3) of the Constitution – the source of the Court’s suo motu jurisdiction. Its manifesto also envisions greater civilian control of the military through measures like defence budget oversight. Now if the PPP were elected into power, it would certainly not be the first to target the military, but we can be sure that limiting military authority will remain an objective for it.

The PTI, on the other hand, appears to be the least likely candidate for triggering action against the military or the Supreme Court. In its manifesto, the party has even proposed the creation of a National Security Organisation, which includes the respective heads of the armed forces and intelligence agencies. NACTA did not fulfil the military’s vision of securing a permanent seat on the internal policy table – so one can expect them to be happy with this proposal. There is no mention of the Supreme Court in PTI’s manifesto. The party appears to have benefited greatly from recent Court decisions, so why criticise it?

Given the political preferences set out above, how do you think V should vote? You might simply say: the PML (N). After all, it appeared to have the strongest preferences against the Supreme Court and the military. However, would this be the most efficient choice? Should V not additionally consider which political party has the best chance of realising their preferred policy position?

Just consider this: would the Supreme Court or the military ever willingly allow another actor to curb their authority? Quite simply: no. And if they will resist, this means a fight.

So what should also be important to V is which party has the best chance of winning this fight and on what terms. Ironically, in a future fight with the Supreme Court, it would be the PTI.

That institutional actors (like the judiciary or the executive) compete with each other for power and not necessarily the “public interest” is a key assumption of constitutional design. The U.S. Constitution – the base of the modern constitutional design – was designed keeping in view that “ambition must be made to counteract ambition.” Three actors: the legislature, the executive, and the judiciary, were to each watch and ward off the other.

But can we not also imagine more players? Think about the military’s role in Pakistani politics. Even though the military is formally under the control of the Ministry of Defence, it functions as a powerful constitutional player.

Similarly, why can’t we imagine an alliance of players? For anyone who has played a game of monopoly or risk, this is not hard to conjure. And it can also be observed in Pakistani politics.

For instance, why do you think the Government has been unable to curb the Supreme Court’s authority? Some might say that previous attempts to do this (e.g. through the 18th Amendment) failed because they were declared by the Court to be “unconstitutional.” However, why did the Government not simply ignore these decisions, as it has done so many times before?

In Madison’s design, the judiciary was conceived to be the “least dangerous” organ of the state because it had no powers of implementation. It did not control the “sword” (the coercive arm of the State) or the “purse” (fiscal incentives). Controversial judicial decisions could, therefore, be simply ignored.

But to say that the sword of the State is not under the control of the judiciary does not mean that the Government wields it. In Pakistan, the army is an independent player. If the army is protecting the judiciary, rest assured that the Supreme Court will be free to rule against politicians.

In an attempt to preserve its power, the judiciary has time and again legitimised military rule in Pakistan. It should thus come as no surprise that the Court has also expanded its influence by expressly supporting (or at least not opposing) the military.

Chief Justice Chaudhry’s resistance to Musharraf was only a short blip in this relationship. Importantly, even during his tenure, the military as an institution was hardly ever challenged. Consider why the Court waited until 2013 to press treason proceedings against Musharraf (which till date have not been completed)? Or why no one from the agencies has really been held accountable in the missing persons’ cases?

Now let’s go back to the decision faced by our Voter, V. V wants to elect a political party which has the best chance of curbing judicial and military power. How should V vote?

The PML (N) would seek to take action against both institutions. But unless it is elected with an extremely broad public mandate (slim chances), it would fail in doing so. Nawaz Sharif’s conviction and presence in jail should be evidence of this.

The PPP would prefer to take on the Court before it tackles the military. However, any action against the Court would be met with stiff resistance from the military. There is historic distrust between the military and the PPP, and the military would prefer to preserve “independent” courts which could be deployed (if necessary) to drive the PPP out of power.

This leaves the PTI. The PTI has yet to form the Federal Government, so there has been no cause (so far at least) for the military to distrust it. The proposal of a National Security Organisation in PTI”s manifesto would also alleviate any fears of the Establishment.

Judicial activism against the PTI Government may, therefore, invite pushback that is not contested by the military. One may, for instance, recall that the Supreme Court endorsed military courts, even though they infringed upon judicial independence. With the military and the PTI on one page, the judiciary may similarly be compelled to accept a reduction in its authority.

V, therefore, needs to sort his or her preferences before the vote. If V prefers judicial activism and independence in its current form, then voting for the PML (N) or the PPP, among other parties, is an option. On the other hand, if V seeks controls of judicial authority, then voting for the PTI may be the most effective choice.

Much of this analysis is admittedly contingent on a variety of institutional conditions which must remain true. Importantly, the strategic narrative painted above assumes a continued alignment of interests between the military and the PTI. The question remains: if elected, will the Kaptaan be willing to share the field?

 

The writer is a Doctor of Jurisprudence.

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