Contextualising the Democracy Deficit in Pakistan: Colonial Legacy, Constitution, Justice and Rule of Law
S Zulfiqar Gilani

Introduction

Officially Pakistan is a democracy, which is its visible face internationally and in public political discourse. However, it has been categorised as an authoritarian regime in the 2024 Economist Intelligence Unit (EIU) Democracy Index report. This disjuncture, however, is glossed over in political and (the meagre) scholarly debate and discussion, which is often acrimonious, opinionated, and quite tangential to the underpinnings of democracy. In fact, often the authoritarian nature of the prevailing dispensation is justified and normalised by various iterations of arguments that democracy is culturally and politically alien to the people, that the population is gullible and makes ‘wrong’ electoral choices, and that things have always been like this. Internationally, democracy or the lack of it in Pakistan does not grab much attention, and in the little coverage, the disjuncture between official claims and the reality on the ground is hardly ever focused on.
The concept of democracy has been changing and getting refined over time. Currently the Democracy Index uses indicators like the electoral process, pluralism, a functioning government, political participation, political culture and environment and civil liberties to give a democracy score for each country, which determines their place on the democratic-authoritarian continuum. Scholars however, have introduced refinements and categorised countries lower on the continuum variously as developing democracies, hybrid regimes, illiberal democracies, or authoritarian.
Notwithstanding its categorisation as an authoritarian regime in the Democracy Index report, Pakistan continues to present itself as a democracy. However, based on the following brief descriptions and analyses of some of the indicators of democracy, Pakistan is anything but a democracy, call it what one may. While useful to a degree, the Democracy Index categorisation does not address the question of why we are where we are. In this essay the question will be addressed by taking a big picture view of the entanglement of democracy in the country with its colonial legacy, constitutional history, system of justice and rule of law.

Colonial Legacy

Although in theory Pakistan is a post-colonial state, substantively it has not shed the colonial shackles, and the regimen and system/s that the British had put in place have proven to be quite robust, i.e., the architecture of power, institutional structure and functioning, system of justice, laws, and governance of Pakistan are still by and large a continuation of the colonial period. Most importantly, the coloniser-colonised relationship remains intact and well-entrenched, the only difference being that the British colonisers have been replaced by Pakistani ones. Pakistan is thus an excellent illustration of Fanon’s ‘Black Skin, White Masks’ formulation. During colonial rule, the King or Queen of England appointed, and removed, the Viceroy, who had almost limitless powers and ruled India (that then included Pakistan) in a dictatorial fashion and without democratic pretensions. Very soon after independence in 1947, the US President took on the mantle of the Crown, and it was an open secret that he approved the appointment and removal of the Army Chief, whose role broadly mimicked that of the Viceroy.

During the early years of independence, there was jostling for power. But within a few years the Army Chief consolidated his power by garnering the support of senior officials of the army, the higher bureaucracy, and some of the very wealthy. However, to present a democratic façade, for important executive positions like Prime Ministers (PMs), Ministers and members of the Legislature, there were elections that however were based on (the colonial legacy of) restricted voting rights. Only the wealthy, well-connected, and state-anointed had the right to vote and contest elections. Further, amongst the contestants, ‘electables’ were designated, who in their campaigns would openly declare the designation to garner votes. Elections were thus a total farce and everyone knew beforehand who would win. Thus, government formation and dissolution and statecraft and governance were almost fully in control of the army and bureaucracy. For example, during the 11-year period of 1947 to 1958, seven PMs were elevated to and removed from office.
The first adult franchise elections were held in 1970, and the results took everyone by surprise, as many of the well-known electables lost to unknown political newbies. However, the electoral mandate was not honoured, which resulted in a civil war and secession of East Pakistan, which became Bangladesh in 1971. Learning lessons from the 1970 elections, all subsequent elections were rigged, with the army master-planning the rigging and the bureaucracy loyally implementing. The rigging was sometimes extensive and heavy-handed, other times not so much. However, in the February 2024 elections the rigging was far more extensive and brazen, with the army masterminding the plan and state machineries implementing it. Institutions like the Election Commission of Pakistan and the Courts, instead of ensuring free and fair elections or providing redressal, became partisan and active facilitators of the rigging. Credible observers of the February 2024 elections documented that there was massive, extensive and brazen pre-poll, voting-day, and post-poll rigging. And the final results were manufactured in line with a pre-existing grand plan.

After each such travesty, there ensues a Machiavellian power-grab dance between various political groupings or cabals, with the Army Chief/military having the overwhelming and deciding say. Thus, who gets to occupy the top executive position/s and forms government/s is a function of transactional arrangements with the senior officials (especially the Chief) of the army, nepotism, bribery, and commitments to servile allegiance. That is how governments are established. Unsurprisingly, most of those who end up occupying the seats of power are beholden to, and in the service of, their benefactors; lack integrity; are financially (and otherwise) corrupt, and launder and siphon off huge sums of ill-gotten moneys that are invested in assets outside Pakistan.

Regarding state officials, especially the higher officers of the military and civil bureaucracy, their method of recruitment, training, and terms of office (laws, rules, and regulations), remain fundamentally the same as in colonial times. Further, promotions, transfers, and postings of state officials are based on the same principles (transactions, bribery, nepotism, servile allegiance/s) as those at play in the formation of government. The hallmarks of state institutions were, and are, over-centralisation, strict hierarchy, over-bureaucratisation. Further, governance that is anti-people and in the service of the ruling cabal. In short, both state institutions and governance are based on a military/army template. Further, state officials have granted themselves extensive perks, have vast authority and discretionary powers, and almost zero accountability.

The overarching framework, or defining philosophy, if one may, of colonial governance was that through draconian and malign laws, the rights and freedoms of citizens were constrained, and a few (colonial rulers and their local collaborators) were more equal and lorded over children of a lesser God, instead of serving or protecting them. They extracted resources and enriched the mother country, and sometimes themselves, and enjoyed vast powers and perks. That legacy is not only in place, but is further entrenched and has spread throughout statecraft and governance.

Constitution

In 1947, the (colonial) Government of India Act 1935 was modified in terms of nomenclature (of the country) and adopted as an Interim Constitution that remained in force until 1956. The 1956 Constitution of Pakistan borrowed significantly from the 1935 document. However, it was rejected by some ethno-national political parties, the Hindu majority parties, as well as the Awami League, the largest Muslim political party rooted in the erstwhile East Pakistan. Therefore, it did not bring any political stability. It however became irrelevant when in 1958 Martial Law was imposed by an army general. In 1962 the dictator promulgated another Constitution through an executive order, which provided a constitutional window-dressing to the dictatorship.

The 1973 Constitution is a significant landmark as it was adopted by a democratically elected parliament, though only that of the remaining Pakistan (East Pakistan, demographically the larger part of Pakistan, had seceded in 1971). (Balochistan’s elected MNAs did not vote in favour of the 1973 Constitution, citing inadequate provisions for provincial autonomy – Ed.) The 1973 Constitution borrowed both from the British parliamentary system and the US Constitution. And notwithstanding its flaws, the sine qua non of the 1973 Constitution was that, at least de jure, it entailed a federal democratic system. In the about 53 years since the passage of the 1973 Constitution, it has been suspended thrice (General Ziaul Haq 1977-1985. General Musharraf 1999-2002, and for a brief period in 2007). More importantly is has been amended extensively and significantly, which has hollowed out its democratic character. For example, the Second Amendment of 1974 declared that the Ahmadis are not Muslims and thus a minority who could only vote through a separate electorate, which, like that of other minorities, made their vote quite irrelevant to mainstream politics. That is, substantively minorities, including Ahmadis, were disenfranchised. The Eighth Amendment of 1985 gave unilateral power to the President (then another military dictator) to dissolve parliament, which was invoked a number of times. Thus parliament and government became hostages to the demands and whims of the President. (That power was however revoked through the 13th Amendment in 2010). Through the 21st Amendment of 2015, civilians charged under terrorism laws could be tried by military courts, and recently over a 100 civilians of one political party were charged under those laws, tried in military courts, and sentenced to various jail terms. The 26th Amendment of October 2024, essentially decimated the independence of the higher courts and reduced the judicial pillar of state to the status of any other department of government. The 27th Amendment of November 2025 distorted the judicial architecture by elevating the Constitutional Bench of the Supreme Court (SC) to the Federal Constitutional Court (FCC), which has greater constitutional powers than the SC. However, the significant malign implications of this structural distortion will not be discussed here. The Amendment also gave the Army Chief lifetime indemnity and tenure that could also be lifetime, making him by far the most powerful person in the country. In short, the 26th and 27th Amendments in combination have not only resulted in ending the independence of courts and judges (see next section), but also created the paradox of ‘constitutionally’ establishing a dictatorship.

The 1973 Constitution has been systematically so mangled that it has lost its spirit and soul, and its status is captured well by the former dictator Ziaul Haq’s statement to the effect that “The Constitution is just a piece of paper that I can shred whenever I want.” That shredding has been ongoing and most of those at the very top (PM, Chief Ministers, Federal and Provincial Ministers, President, Judges of the higher courts, higher bureaucracy, the Chief and top Generals of the army, and the list could go on), expected to protect and maintain the integrity of the Constitution, are its foremost and greatest violators. Resultantly, the Constitution is only a paper document and we are a country without a social contract. From a constitutional perspective we are in an Orwellian nightmare where the constitution is violated daily by those who are under oath to protect it, has become irrelevant, establishes a dictatorship, and enshrines the primitive principle of might is right.

Justice and Rule of Law

The evidence of the trampling of justice and absence of rule of law is extensive, which will not be detailed here. Further, the situation has been worsening progressively, though it has become much more brazen and gathered speed during the last about four years. Below is a brief discussion of some major issues in that domain.

A foundational requirement of a democracy is a robust justice system, which in turn requires independent courts. In a constitutional system of checks and balances, independent courts have the power to review and/or strike down illegal or unconstitutional actions of the legislature and the executive. In addition, independent courts are guardians of human rights and civil liberties, and by ensuring the rule of law, facilitative of economic growth. As stipulated in the (unamended) 1973 Constitution, courts in Pakistan were to be independent of the other two (executive and legislative) pillars of state. Further, the higher courts, especially the SC, were to be the guardians and interpreters of the Constitution, and were to provide redress when it was violated.

A critical factor in the independence of the judiciary is the independence of judges so that their decisions are not influenced by the executive or the legislature or other powerful individuals of influence (higher officials of the army and bureaucracy, and the very wealthy), and they can make decisions according to law. Independence of judges was de jure protected in the (unamended) 1973 Constitution. However, de facto there were many instances of arm-twisting through power-mongering, bribery, or threats. The running joke was that the powerful do not get the services of a lawyer, but that of a judge. Nevertheless, there have been a number of judges who kept adjudicating independently, though their numbers have been declining as the dystopian forces have been gaining strength.

Notwithstanding the envisaged independence, the decisions of the SC and High Courts between 1973 and 2024 are a mixed bag. On the one hand they have rendered many decisions that gave legal cover to army coups and martial laws, suspensions and amendments of the constitution, and failed to provide redressal to citizens whose rights and liberties were trampled by the state. On the other hand they have at times maintained constitutional checks on the executive and the legislature, upheld democracy and justice, and protected human rights.

Nevertheless, overall the damage of the malign decisions to democracy and the rights and liberties of citizens is extensive and long-lasting. Further, such decisions have established precedents and created constitutional distortions that are reversible only through a deep and radical overhaul, but that too only in theory. The mind boggles over how a reversal would be pragmatically possible. As mentioned above, the 26th Amendment of 2024 has significantly compromised judicial independence, and in that regard it has two salient features. One, it has made significant changes in the method of appointment of judges, including appointments of Chief Justices, and their placements. Two, a Constitutional Bench was established in each of the higher courts, which has distorted the very architecture of the judiciary and created many jurisdictional grey areas, but which will not be discussed any further. Under the 26th Amendment, decisions of appointments, placements, and heading a higher court are now taken by a body that has a clear majority of politicians and judicial bureaucrats. So, after the passage of the Amendment, the higher courts were rapidly packed by cherry-picked judges, and the same done in appointing Chief Justices of the Supreme and High Courts. Prima facie the guiding principle in those selections was not merit. Rather, judges were chosen who, rather than providing justice in accordance with the constitution and the law/s, had a record of, and apparently made a commitment to, decide in favour of the government and the ruling cabal, and against opponents and dissidents. As a corollary, Judges adhering to the constitution and the law are maligned and harassed and sometimes even vicariously tortured. Through such methods they are either forced to toe the line, or made to resign, or thrown out through a rigged process. If none of these methods work, they are not assigned any cases in which government or army actions are challenged. All of this has severely damaged the independence and credibility of the judges (and higher courts), which is also having pernicious effects downstream on the criminal justice system.

The overall purpose of compromising the judiciary is to dilute, if not end, their role of protecting people’s democratic and legal rights, and strengthen the unaccountable dictatorial rule of the cabal. To those ends, justice is denied to the aggrieved of the massively rigged elections of February 2024, as well as to opponents and dissidents whose rights and freedoms are being trampled by the state. There is no legal accountability of the ruling cabal and state officials for their (brutal and illegal) actions against opponents and dissidents. Operationally, justice is being trampled by rejecting most petitions challenging the constitutionality of government actions on frivolous technical grounds and by not hearing the few accepted for long periods after being registered, and then holding hearings at a snail’s pace. The exception that proves the rule is the hearings of cases against opponents or dissidents, which are fast-tracked without due process, and punitive adjudication is a foregone conclusion. In this context, everyone knows that regardless of merit, the constitution, or the laws, the courts/judges will always decide in favour of the government and against opponents and critics. And there are strong indicators that in most, if not all, important cases the (amateurish and illogical) judgements are written by officer/s of the Judge Advocate General (JAG) office of the army, for whom justice or law does not seem to matter.

More importantly, although included in the books, in practice there is no habeas corpus for dissidents and opponents. So, many are picked up, mostly by one or the other intelligence branches of the army, and sometimes initially by the Police, who then hand them over to one or the other army branch, and many (most) are never presented before any court. The overall official narrative is that the missing persons are terrorists. They (missing persons) disappear for various durations, some for years. Most of them are tortured, and some killed, and then chalked up as yet another victory against terrorists. Ridiculous and unbelievable stories are concocted about the reappearance of the lucky few, and most of them then refrain from revealing what happened to them, or express any dissidence or criticism. According to some wits, such returnees have had their ‘software updated’.

People who are critical of the prevailing dispensation are arrested on cooked up charges, and the Police has a free hand to declare any act a crime. For example, people have been charged for assembling, protesting, criticising certain holies (especially the army chief), singing particular songs, or displaying certain images or placards or flags, and so on. Further, people are being charged for crimes even if they were not present at the crime scene. Or being charged for having committed the same crime at the same time at multiple crime scenes that are miles apart. Or the wording of the charge/s of large numbers of different individuals are exactly the same. In many cases, after being charged, there is no indictment for years, during which time they languish in jails. In cases of indictment, a fair trial and due process is a rare exception, mostly non-existent. And decisions are based on the identity of the accused and not the evidence, hence are known beforehand.

The Police and intelligence personnel of the army have full license to enter homes without warrants, which in plain words is an invasion of privacy. During many of the invasions valuables are stolen, and furniture and appliances trashed. In a typical invasion, the residents are terrorised and brutalised. And if the person of interest, that is, political opponent or dissident, is not at home, one or more close relative (spouse, child, parent, live-in extended family member, etc.) are picked up and the message conveyed that they will be released if the person of interest hands himself/herself over. In addition, there has been a huge spike in extra-judicial killings in the biggest province of the country. Overall, the so-called law-enforcing agencies are acting as terrorists who act with impunity and, where possible, try to justify their actions by invoking malign laws, or ignoring and violating them. The state not only sanctions and supports the criminality, it rewards it. It is a chaotic situation where might is right and the state is trampling democratic and human rights, civil liberties, justice, and the rule of law, all the while shamelessly touting democracy. Crucially, there is no judicial, or even administrative, accountability of the criminal activities of state personnel. To begin with, cases are not registered against them, especially if they have higher ranks. If by some miracle a case does get registered, it goes into deep freeze, or there is a pretend trial, and in the end they go scot-free. It is alleged that such trials are not to hold responsible and punish the criminals, but to whitewash their crimes by giving them a judicial clean chit. On the other hand, if perchance a court orders that dissident/s or opponent/s should be provided one or the other constitutional or legal right, the relevant personnel just ignore the orders. And the courts have become so subservient that they do not dare to hold contempt proceedings against such offenders. Last but not the least, whistleblowers, of which there were a few in earlier years since 2022, are treated like criminals and given exemplary punishments. So, regarding justice and the rule of law, Pakistan is in the grip of a dystopian darkness.

Last Word

As I progressed in describing just the first three of the contextual factors (colonial legacy, constitution, justice and rule of law) of the democracy deficit in Pakistan, it became apparent that words like ‘democracy’ and ‘democracy deficit’ are not applicable in this country and could be misleading. They were nevertheless used following linguistic conventions. If one were to put aside the conventions, instead of a democracy deficit, the applicable and apt phrase to describe our situation would be ‘Pakistan’s Descent into Dystopia’.