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Thursday, February 22, 2024

Is it Appropriate for State Institutions to Face Public Criticism?

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Sarah Pereez
Sarah Pereezhttps://lahorelives.com
With almost 3 years of experience in journalism, Sarah Pereez has joined Lahore Lives as a Editor in 2023. She has previously worked as an Entertainment journalist, covering Hollywood & Bollywood news. At Lahore Lives, she tracks news updates, edit articles and write copies for science and technology.

Demonstrations outside the Supreme Court‘s premises in Islamabad on May 24th of this year prompted a response. This happened during the review petition process that the Election Commission of Pakistan (ECP) filed.

Chief Justice Umar Ata Bandial instructed AGP Mansoor Usman Awan to approach the Pakistan Democratic Movement (PDM) coalition, urging them to refrain from making critical statements about the Court. The PDM leaders had organized a sit-in outside the Supreme Court, alleging it had shown unprecedented favor to Imran Khan.

This occurrence evoked memories of a similar public outcry concerning the United States Supreme Court. This event was triggered when a draft of Justice Samuel Alito’s opinion in the case of Dobbs vs. Jackson Women’s Health Organization was leaked in the prior year’s May. Subsequently, protests erupted, leading to security concerns.

These concerns were so severe that Justice Alito’s scheduled in-person speech at George Mason University had to be converted into a remote video presentation from within the premises of the U.S. Supreme Court.

In an ensuing interview with the Wall Street Journal, Justice Alito clarified that the public demonstrations were merely the visible part of a coordinated effort to prevent the leaked draft from being misconstrued as the Court’s final decision.

The campaign extended to unlawful assemblies near the residences of the justices. It even included death threats against those justices believed to be part of the majority favoring the Dobbs decision.

According to Justice Alito, the extensive criticism has not only cast doubt on the credibility of the U.S. Supreme Court but also manifested as insincere endeavors that failed to pinpoint substantial issues warranting resolution.

These incidents raise four interconnected inquiries: (i) Can criticism be differentiated as constructive or detrimental? (ii) Is criticism against governmental institutions ever warranted? (iii) Should institutions be receptive to public criticism? and (iv) Does criticism play a pivotal role in overseeing state institutions?

This article will delve into the answers to these inquiries, establishing that the answer to each one is a resounding “indeed.”

Positive vs. Negative criticism

In exploring this matter, we focus on Greece, the historical cradle of modern democracy. The term ‘parrhesia’ frequently emerges within the annals of ancient Greek literature, notably in the writings of theologians, philosophers, and playwrights.

Parrhesia is commonly interpreted as the embodiment of free speech, with ‘parrhesiastes’ denoting those who speak unwavering truths. In a series of lectures delivered in 1983, the philosopher Michel Foucault expounded upon the essence and evolution of this concept.

Central to parrhesia is the unabridged articulation of one’s thoughts. Parrhesiastes harbors no concealments. They lay bare their thoughts and emotions to others through discourse.

Although parrhesia encapsulates the speaker’s perspective, Foucault posits that as the dialogue remains sober and sincere, parrhesiastes utter their own beliefs and actual truths. However, Foucault proffers a crucial caveat before speech can attain the status of parrhesia.

According to Foucault, parrhesiastes assume a risk due to the inherent power asymmetry between the subject and object of criticism. For instance, philosophers who confronted the rulers of ancient civilizations, condemning their policies as oppressive and unjust, undertook significant peril. The philosopher’s dissent could have led to punishment, exile, or even death at the hands of the ruling powers.

Nevertheless, jeopardy need not always be life-threatening. Individuals who witness their friends engaging in wrongful actions and opt to rebuke them also employ parrhesia, knowing that they jeopardize their friendship. In Foucault’s view, bravery in confronting personal risks constitutes parrhesia, and such critiques warrant attention for their inherent truthfulness.

Thus, parrhesia emerges as the criterion against which all forms of criticism should be measured. Viewing this through the same lens, the division between constructive and baseless criticism becomes clearer.

In contemporary society, criticisms aimed at public figures by individuals sheltered behind the cloak of social media anonymity fail to meet the standards of parrhesia.

Returning to the prior example, anonymous threats of harm directed at Justice Alito and fellow judges presiding over the Dobbs case do not qualify as parrhesia, given the difficulty of tracing the senders.

Such communications can be seen as personal vendettas at best. Conversely, social activists who raise their voices on behalf of religious minorities within a predominantly religious nation confront the risk of persecution by the majority. Their use of parrhesia necessitates due consideration and recognition by policymakers and stakeholders.

Naturally, this conception leaves substantial room for ambiguity, necessitating a nuanced evaluation on a case-by-case basis. Does the recent sit-in staged outside the Supreme Court in Islamabad qualify as an instance of parrhesia?

The participants in the sit-in were leaders of the Pakistan Democratic Movement (PDM), with other attendees responding to their calls. Given the PDM’s authority at the time, it is improbable that law enforcement would take action against the demonstrators.

Furthermore, the alignment of the establishment with the ruling coalition implies that the demonstration likely received tacit approval. Meanwhile, under pressure to demonstrate impartiality, the Supreme Court would likely abstain from utilizing its contempt powers against the protesters.

Considering the absence of risk to the demonstrators, it becomes apparent that they did not employ parrhesia. Their protest can, at most, be construed as a strategic maneuver to exert pressure on a state institution to secure favorable outcomes.

Is it Justified to Criticize State Institutions?

In September of the previous year, during a rally in Faisalabad, Imran Khan asserted that the PPP and PML-N opposed the prospect of fresh elections due to their desire to “appoint an army chief of their choice.”

He further implied that these parties were apprehensive about the possibility of an assertive and patriotic army chief who might question them about alleged ill-gotten wealth.

These remarks ignited a widespread public outcry. The Inter-Services Public Relations (ISPR) responded with a statement expressing their dismay at the “defamatory and uncalled for” comments regarding the army’s senior leadership.

PDM leaders condemned Imran Khan for leveling what they termed “poisonous allegations” and for tarnishing the reputation of the newly appointed army chief. Putting aside political disagreements, the question arises: Was this criticism against a state institution warranted?

The foundation of democracy is built upon the separation of powers, where the executive, legislative, and judicial branches are anticipated to operate within the confines of their constitutional roles.

Any institution functioning within the public sphere should be amenable to public critique, as effective governance hinges on accountability. Let’s examine two scenarios to elucidate this further.

Firstly, if an institution operates within its defined constitutional boundaries but underperforms in carrying out its legal responsibilities, failing to uphold the democratic principles of fairness, rule of law, and constitutional adherence, criticism directed at such state entities is entirely justifiable.

In the private sector, subpar performance would naturally garner attention, with superiors addressing the issue. Consistent poor performance might even lead to termination. If private sector employees are expected to adhere to established standards and uphold their employment responsibilities, why should state institutions be exempt from such scrutiny?

In the second scenario, if state institutions exceed their constitutionally prescribed limits and engage in activities outside their purview, the Pakistan Army being a case in point, criticism becomes not only justified but crucial.

Throughout the nation’s complex history, the army has been known to overstep its boundaries, which former army chief General Qamar Javed Bajwa acknowledged.

Additionally, it’s common knowledge that the army has wielded disproportionate influence, encroaching upon and wresting power from other institutions. Imran Khan’s remarks in Faisalabad alluded to this aspect. In light of this context, is criticism of the army warranted? Undoubtedly.

However, it’s essential to consider whether Imran Khan’s comments were themselves justifiable. One might even argue that he employed “parrhesia,” uttering his statement despite perceiving a significant personal risk.

The potential repercussions of confronting the army in this country need no reminder. Yet, according to Foucault, Imran’s speech might not fully qualify as “parrhesia,” here’s why.

Foucault postulates that “parrhesia” and rhetoric maintain an independent relationship, not necessarily intertwined. Extended monologues often fall within rhetoric, while dialogues characterized by question-and-answer interactions align more with “parrhesia.”

This doesn’t imply that a specific form of interaction is requisite for “parrhesia.” Rhetoric can indeed embody “parrhesia” attributes. However, speeches manipulating audience emotions through “simulated or artfully designed” techniques can’t truly be considered “parrhesia.”

Imran Khan’s political approach could be aptly characterized as populist, invoking emotional resonance and creating divisions between “us” and “them.” Consequently, his rally statement might not squarely fit the “parrhesia” definition.

Hence, the question persists: Are state institutions, including the military, immune to criticism? The answer is no. Criticism is justifiable, yet its legitimacy must be evaluated against the benchmark of “parrhesia.”

Should State Institutions Address Criticism?

The philosophical paradigm of individualism posits that society comprises individuals who aggregate into institutions. The underlying assumption is that these institutions demand consideration only within the purview of the aggregated individuals.

This perspective can be juxtaposed with collectivism,’ which emphasizes the significance of the community as a cohesive entity. Collectivism strongly emphasizes group cohesion and structures of mutual support and progress.

Central to this ethos are the institutions of governance. To adopt an individualistic mindset is to overlook the collective dimension, an oversight prevalent among certain Enlightenment-era social scientists.

Joseph Agassi and Ian Jarvie highlighted this approach, revealing that thinkers of that era sidestepped discussions regarding institutions. Consequently, “economists examined trade rather than the market; political theorists explored relations between rulers and the ruled rather than the state.”

The flaw in this approach becomes apparent. It’s self-evident that the market influences trade, just as trade influences the market. Similarly, rulers impact the ruled, and the ruled influence rulers.

Concentrating solely on one facet while neglecting the other leads to an incomplete understanding, akin to failing to discern the individual trees within the broader forest or the forest that houses the individual trees.

Concentrating solely on institutions without acknowledging individuals, and vice versa, paves the way for potential disaster. With this premise established, the interconnected dynamic between individuals and institutions becomes clear.

In an essay, Bertrand Russell aptly noted, “Institutions shape character, and character reshapes institutions.” Without input from people, institutions remain abstract, but if they allow character development to influence them, they can gradually concretize.

In the context of Pakistan, the recent amendments to the Pakistan Penal Code introduced by the Criminal Laws (Amendment) Act, 2023 raise concerns precisely due to this rationale.

This amendment institutes a maximum five-year prison sentence for those who disseminate information through any medium to “mock or scandalize” the military, judiciary, or their members.

Disregarding the nature of the criticism, this amendment employs legal mechanisms to stifle freedom of expression and undermine public oversight and critique of state institutions. It represents another stride towards isolating society at large.

This approach needs to be more counterproductive. State institutions should remain receptive to a wide spectrum of public criticism. In any society, criticism spans the spectrum from constructive and candid discourse to baseless attacks and threats. Each institution should devise mechanisms to discern which criticisms merit genuine consideration.

The Role of Criticism in Regulating State Institutions

Reflecting upon the United States Supreme Court, historical precedent illustrates the Court’s responsiveness to burgeoning public criticism. A few instances are illustrative in this regard.

One prominent case is that of West Coast Hotel v. Parrish in 1937. In the lead-up to 1937, Justice Owen Roberts and other conservative justices of the Supreme Court consistently impeded Franklin Roosevelt’s New Deal initiatives to revitalize the nation from the throes of the Great Depression.

Frustrated, Roosevelt initiated a campaign against the Court, leading to widespread public discontent. In response, Roosevelt proposed his court-packing plan in 1937, which aimed to increase the number of justices to 15.

Coinciding with this period, the Parrish opinion was issued. Surprisingly, the Supreme Court upheld the constitutionality of minimum wage laws, thereby endorsing a key New Deal measure.

This pivotal shift resulted from Justice Roberts switching sides and aligning with the liberal bloc. Subsequently, Roosevelt discerned that court-packing was no longer necessary and withdrew the plan. Harvard Law School’s Professor Thomas Reed Powell famously termed this occurrence “a switch in time saves nine.”

As a more contemporary example, the U.S. Supreme Court has faced public backlash for its frequent utilization of emergency relief powers, forming the “shadow docket.” This term encapsulates a range of orders and summary decisions that deviate from the Court’s typical procedural norms.

According to a report by the Chicago Policy Review, recent cases indicate that the Court has invoked the shadow docket more frequently in contentious matters, sometimes in an inconsistent and partisan manner.

For instance, the Court intervened to uphold a series of immigration policies by President Donald Trump that had been overturned by lower courts. Similarly, it defended religious freedoms by blocking New York’s occupancy-based restrictions on religious services during the COVID-19 pandemic.

In contrast, the Court refrained from intervening to shield President Joe Biden’s policies and from blocking contentious conservative laws, such as the Texas six-week abortion ban that came into effect in September 2021, ten months before Roe v. Wade was overruled.

The Court’s perceived manipulation of the shadow docket to advance political objectives garnered substantial criticism. Justice Elena Kagan characterized the Court’s use of the shadow docket as “unreasonable, inconsistent, and impossible to defend.” However, an intriguing shift occurred.

In October 2021, the U.S. Supreme Court opted against utilizing the shadow docket to block Maine’s vaccine mandate. Notably, two conservative justices, Amy Coney Barrett and Brett Kavanaugh, concurred that presenting a case for emergency relief did not mandate Court intervention.

Chief Justice John Roberts, another conservative judge, joined a dissent alongside the liberal bloc, expressing concerns about the Court’s excessive reliance on the shadow docket.

After these events, the use of the shadow docket notably diminished. For instance, in April 2023, the Court preserved nationwide access to the abortion drug mifepristone.

Stephen Vladek, an author on the subject, posits that the Texas abortion ban case marked a turning point as it triggered considerable public backlash, prompting the Court to self-regulate its powers.

However, the other side of the argument warrants consideration: what occurs when state institutions are immune to public scrutiny?
In Pakistan, military courts, recurrently established to prosecute terrorism suspects, represent a glaring illustration.

These courts have been scrutinized for suspending suspects’ constitutional rights to secure high conviction rates. Concerns have arisen about the accuracy of testimonies against the accused, incongruities between charges and evidence, and the limited legal expertise of military court officers.

Sam Zarifi, former Asia director of the International Commission of Jurists, criticized these military courts for their lack of transparency and operation “in violation of national and international fair trial standards.”

Consider whether a civilian court could function with the same level of impunity. The answer is likely no, for civilian institutions inherently possess more transparency and accountability, notwithstanding their potential flaws in the Pakistani context.

Judicial decisions carry political ramifications, and the appropriateness of criticism and the Court’s responsiveness will perpetually invite differing viewpoints.

However, as earlier elucidated, institutions cannot thrive in a vacuum disconnected from societal influences and preferences. The Constitution must be interpreted as a dynamic document capable of evolving with a changing society.

This discourse maintains that criticism is neither inherently positive nor always justified. Nevertheless, what remains undeniable is that historical and contemporary global instances underscore the pivotal role criticism and public pressure play in ensuring institutional accountability.

Institutions must establish robust internal mechanisms to sift through, process, and formulate policies based on constructive criticism. Recognizing the interdependence between institutions and the public is a pivotal step toward the betterment of our nation.

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