August 31, 2023
ISLAMABAD – On May 24, earlier this year, in response to protests outside the Supreme Court premises in Islamabad, during the pendency of a review petition filed by the Election Commission of Pakistan (ECP), Chief Justice Umar Ata Bandial told AGP Mansoor Usman Awan to ask the Pakistan Democratic Movement (PDM) coalition to restrain from criticising the court. PDM leaders had staged a sit-in outside the SC, accusing it of granting unprecedented relief to Imran Khan.
This incident was reminiscent of similar public uproar that had erupted against the United States Supreme Court after the draft of Justice Samuel Alito’s opinion in Dobbs vs Jackson Women’s Health Organisation had leaked in May, last year. A week after the leak, Justice Alito was scheduled to speak at George Mason University in Virginia, but protests and ensuing security issues forced him to deliver the speech via video link, from inside the US Supreme Court building.
In an interview given to the Wall Street Journal later, Justice Alito explained that public demonstrations were only just the tip of a concerted campaign devised to prevent the leaked draft from becoming the court’s decision.
The campaign included unlawful assemblies outside justices’ homes and death threats against those justices who were suspected to form part of the majority in the Dobbs decision. According to Justice Alito, excessive criticism has only served to question the legitimacy of the US Supreme Court. It represented bad faith efforts and failed to identify tangible problems that needed to be resolved.
These episodes bring to mind four interrelated issues: (i) Can criticism be categorised into good and bad (ii) Is criticism against state institutions ever justified (iii) Should institutions be responsive to public criticism and (iv) Does criticism play an important role in regulating state institutions.
The answer to all these questions, as will be elaborated in this article, is ‘absolutely’.
Good vs bad criticism
To address this issue, let us turn to Greece, the birthplace of modern democracy. The word ‘parrhesia’ appears regularly in ancient Greek literature, particularly in writings of theologians, philosophers, and playwrights. Parrhesia is ordinarily translated to free speech, and ‘parrhesiastes’ are those who speak the truth. In a series of lectures delivered in 1983, philosopher Michel Foucault explained the meaning and evolution of the word.
Under parrhesia, the speaker says everything that is on their mind. Parrhesiastes do not hide anything. They open their heart and mind to other people through discourse.
While parrhesia is the opinion of the speaker, Foucault believes that as the speech is unadulterated and authentic, parrhesiastes say what is actually true and not just what the speaker believes to be true. However, there is one important qualification given by Foucault before speech can be categorised as parrhesia.
According to Foucault, parrhesiastes put themselves in danger because there is a power imbalance between the subject and the object of criticism. For example, philosophers who addressed sovereigns of ancient civilisations and criticised their policies as tyrannical and unjust took a grave risk. The tyrant may have punished, exiled, or even killed the philosopher for speaking out.
But it does not always have to be a risk to life. People who see their friends doing something wrong and choose to reprimand them for it are also using parrhesia as they risk losing their friendship. According to Foucault, courage in the face of personal risk creates parrhesia, and such criticism merits consideration as it is the truth.
Parrhesia, therefore, is the standard by which all criticism should be judged. And when viewed from this angle, bifurcating good and bad criticism becomes easier. In modern society, criticism directed at public figures from individuals hiding behind the veil of social media anonymity is not parrhesia.
To go back to our earlier example, anonymous death threats directed at Justice Alito and other judges forming the majority in the Dobbs case is not parrhesia as the mail is unlikely to be traced back to the senders. It is axe-grinding at best. However, social activists raising their voice for religious minorities in a hyper-religious nation risk majoritarian persecution. So, they are using parrhesia and such criticism deserves to be heard, properly considered, and given due importance in society by policy makers and stakeholders.
Naturally, this leaves considerable room for grey areas, which requires a case-by-case analysis. Does the sit-in staged outside the SC in Islamabad qualify as parrhesia?
Protesters present at the sit-in were PDM leaders. Others gathered had done so at the behest of those leaders. Law enforcement agencies would in no circumstances have acted against the protesters, as the PDM was in power at the time. The establishment, being on the ‘same page’ as the governing coalition, had most likely given the green light. Meanwhile, the SC would have never used its contempt powers against the protesters, as they were already under considerable pressure to prove they were not favouring one side over the other.
The protesters faced no risk and, hence, were not using parrhesia. Their protest can at best be seen as a pressure tactic against a state institution to get favourable outcomes.
Is criticism against state institutions justified?
In September last year, at a rally in Faisalabad, Imran Khan said that the PPP and PML-N were opposing fresh elections because they wanted to “appoint an army chief of their choice”, and that the two parties were afraid that “if a strong and patriotic army chief is appointed then he would ask them about the looted wealth”.
The comments created wide-scale public uproar. The Inter-Services Public Relations (ISPR) issued a statement, saying they were “aghast at the defamatory and uncalled for” remarks about the army’s senior leadership. PDM leaders slammed Imran for levelling “poisonous allegations” and “putting blots” on the new army chief’s appointment. Political differences aside, was this criticism against a state institution justified?
Democracy is based on the trichotomy of powers. The executive, legislature, and judiciary are expected to remain within their constitutional bounds. Any institution that performs functions within the public domain should be open to public criticism, because good governance is impossible without accountability. So let us consider two scenarios here.
In the first instance, an institution remains within its constitutional limits but performs its legally mandated duties poorly. It also fails to uphold the democratic ideals of a just and equitable system, rule of law, and constitutional liberalism. Criticism against such state institutions is completely valid.
In a private establishment, poor performance will be noticed, and your superior will speak to you about it. Persistent bad performance may be grounds for termination. If private sector employees are expected to adhere to, and maintain employment standards, why should state institutions be given a free pass?
In the second instance, state institutions exceed their constitutional limits, and perform functions that are not theirs to perform. The Pakistan Army has done this repeatedly throughout our chequered history — this much has been acknowledged by former army chief retried Gen Qamar Javed Bajwa. It is also public knowledge that the army exerts undue influence, suppresses, and usurps power from other institutions. This was also Imran’s connotation when he made the aforementioned speech in Faisalabad. So, given this background, is criticism against the army justified? Absolutely.
However, was Imran justified in making the remarks he made? One might even argue that he was using parrhesia as he made the statement, knowing there was a grave personal risk involved. No one needs to be reminded of what the army is capable of in this country. But Foucault would argue that the speech was not justified, and here is why.
According to Foucault, parrhesia and rhetoric have a non-symbiotic relationship — they are independent of each other. Continuous long speech is a rhetorical device, while dialogue through questions and answers is more typical of parrhesia.
This does not mean that a back and forth is a requisite of parrhesia. Rhetoric can also be parrhesia. However, speeches where the speaker is trying to intensify the emotions of the audience through “simulated or artfully designed” means can never be parrhesia. Imran’s approach to politics is best categorised as populism — appealing to ‘the people’ by pandering to people’s emotions and creating ‘us’ vs ‘them’ groups. Imran’s statement at the rally was not parrhesia.
So, is the army, or any state institution for that matter, above criticism? No. Criticism is justified but must be judged by the standard of parrhesia.
Should state institutions be responsive to criticism?
‘Individualism’ is an analytical school of philosophy which states that society is made up of individuals that aggregate into institutions. The assumption here is that institutions need no consideration beyond the consideration of the individuals aggregated.
This can be compared and contrasted with ‘collectivism’, which stresses the importance of the community as a whole. Collectivism has a strong focus on group bonds and structures of mutual support and advancement. Prime among them are the institutions of governance. To embrace the individualist mindset is to ignore the collective, as was done by certain social scientists in the Enlightenment era.
Joseph Agassi and Ian Jarvie addressed this approach, explaining that social and political thinkers of that era dodged discussions of institutions. This meant that “economists discussed not the market but trade; politologists discussed not the state but the relations between the rulers and the ruled.”
One can already see the fallacy in this approach. It goes without saying that the market affects trade, and trade affects the market. Similarly, rulers affect the ruled, and the ruled affect the rulers. To focus on one while overlooking the other, is to not see the forest for the trees, or the trees for the forest. To focus on institutions while ignoring the individuals, and vice versa, is a recipe for disaster.
Having established this, we can understand the intertwined relationship between individuals and institutions. In an essay, Bertrand Russell wrote, “institutions mould character, and character transforms institutions”.
Without input from individuals, institutions remain abstract, but can gradually grow more concrete if they allow themselves to be transformed by character.
In the local context, recent amendments made to the Pakistan Penal Code through the Criminal Laws (Amendment) Act, 2023, are problematic for exactly this reason. The amendment introduces a maximum five-year prison term for anyone who publishes or shares information, through any medium, with the intent to “ridicule or scandalise” the military and judiciary or its members.
Without regard to the nature of the criticism, the amendment weaponises laws to curb free speech and weaken public scrutiny and criticism of state institutions. It is another step towards shutting out society at large.
This is counter-productive to say the least. Institutions must in fact keep their eyes and ears open to any and all public criticism. In any society, criticism varies from parrhesia to mudslinging to death threats. Each institution must develop their own checks to determine which criticism warrants consideration.
Does criticism play an important role in regulating state institutions?
Going back to the United States Supreme Court, history guides us that the court has changed its ways in response to mounting public criticism. Let us go through a few examples.
The 1937 case of West Coast Hotel vs Parrish is perhaps the most prominent example of this. Leading up to 1937, Justice Owen Roberts along with other conservative judges of the SC had blocked most of Franklin Roosevelt’s New Deal measures which were meant to revive the country back from the Great Depression. Roosevelt started campaigning against the SC and public backlash soon followed. As a reactionary move, Roosevelt announced his court packing plan in 1937 to increase the strength of the court to 15 judges.
Around this time, the Parrish opinion was announced, and surprisingly, the SC upheld the constitutionality of minimum wage laws, sanctioning a New Deal measure.
This happened because Justice Roberts switched sides to vote with the liberal bloc. What followed was a realisation by Roosevelt that court packing was no longer necessary and he withdrew his plan. Professor Thomas Reed Powell of Harvard Law School famously dubbed this as “a switch in time saves nine”.
As a more recent example, the SC has faced public backlash in the US against their excessive use of emergency relief powers, used to freeze or unfreeze lower court rulings during the pendency of the case. Will Baude, a University of Chicago professor calls this the “shadow docket”. A shadow docket is a range of orders and summary decisions that defy its normal procedural regularity.
According to a report in the Chicago Policy Review, recent cases have indicated that the SC has used the shadow docket more frequently in controversial cases, and also in an inconsistent and partisan way. For example, the court stepped in to allow President Donald Trump to carry out a series of immigration policies struck down by lower courts. The SC also stepped in to protect religious liberties by blocking New York’s occupancy based restrictions on religious services during the Covid-19 pandemic.
By contrast, the court refused to step in to protect President Joe Biden’s policies or to block controversial conservative laws, like the Texas six week abortion ban which the SC allowed to go into effect in September 2021, 10 months before Roe vs Wade was overruled. According to the report, the court’s shadow docket rulings appear to favour Republican policies over Democratic ones. Perceived use of the shadow docket by the court to achieve political ends has drawn widespread criticism. Justice Elena Kagan described the court’s use of the shadow docket as “unreasoned, inconsistent, and impossible to defend”. But then there was an interesting shift.
In October 2021, the US SC refused to use the shadow docket to block Maine’s vaccine mandate. Two conservative judges of the court, Justices Amy Coney Barrett and Brett Kavanaugh, concurred to state that just because an applicant had made a case for emergency relief does not mean the SC had to intervene. Later, in 2022, Chief Justice John Roberts, another conservative judge, joined a dissent with the liberal bloc of the court to emphasise concerns about the SC’s excessive use of the shadow docket.
Since then, the shadow docket has been used far less often. Just consider the fact that in April 2023, the court preserved nationwide access to the abortion drug mifepristone. Stephen Vladek, author of a book on the shadow docket, believes that the Texas abortion ban case was a tipping point. It drew tremendous public backlash, forcing the court to self-regulate its powers.
Let us focus on the flip side of this argument — what happens when state institutions are completely shielded from public scrutiny.
In Pakistan, military courts set up time and again to prosecute terrorism suspects stand out as a glaring example. They have been criticised for suspending suspects’ constitutional rights in favour of high conviction rates. There have also been concerns about the accuracy of the testimonies against the accused, and discrepancies between the charges and evidence provided, as well as the lack of legal training of military courts’ officers.
Sam Zarifi, former Asia director of the International Commission of Jurists, also criticised the military courts for being opaque and operating “in violation of national and international fair trial standards”.
Ask yourself whether a civilian court can operate with the same level of impunity. The answer is no, for the obvious reason that civilian institutions have more transparency and accountability, however flawed these concepts might be in Pakistan.
Judicial decisions have political ramifications and there will always be a split opinion on whether criticism is fair, and whether the court should be responsive to it. But as argued earlier, institutions cannot exist in a vacuum, shielded from societal forces and preferences. That is why the Constitution must be interpreted as a living, breathing document. It must evolve with the society around it.
As this article argues, criticism is neither always good, nor always justified. But what cannot be denied is that historical and recent examples from across the world show that criticism and pressure from the public play a crucial role in holding institutions accountable.
Institutions must develop strong internal mechanisms to filter, register, and devise policies around good criticism. The sooner it is realised that institutions and the public are mutually dependent on each other, the better it will be for our country.