In his 1945 book, Open Society and its Enemies, the Austrian philosopher Karl Popper described a paradox, which he called the “paradox of tolerance.” Popper wrote that a society that is highly tolerant becomes vulnerable to the inevitable domination of intolerant forces. Therefore, Popper suggested that, if intolerant forces continue to overstep rational lines of communication or action, the tolerant should have the right to become entirely intolerant towards these forces. 

Popper was positing that intolerance that has become a danger to a tolerant society should be dealt with an equal measure of intolerance. Otherwise, such a society will be swamped by intolerant forces. Popper was extremely perturbed by the violence and crimes of the Nazi regime in Germany. To him, before the rise of the Nazis, German democracy was too tolerant towards them.

Had the Nazis been dealt with through firmer laws or even banished for misusing democratic freedoms in a bid to destroy the republic, their rise to power could have been avoided. So, was Popper, who was a staunch liberal, pointing out the limitations of liberal democracy? Was he suggesting that excessive freedom of speech and action needs to be curbed to safeguard these freedoms? 

Popper advised that rational means should be adopted to engage with intolerant forces. It is only when such engagements are “met with fists” that the tolerant segments of the society should have the prerogative to formulate laws that are intolerant towards intolerance. 

Some are accusing Pakistan’s judiciary of becoming overtly politicised and ‘intolerant’ towards parliament, while others are alleging the ruling coalition is undermining the judiciary’s independence. So, who exactly is in the wrong?

Popper feared that if this were not done, intolerant forces would continue to accumulate and overwhelm a society’s tolerant disposition. To Popper, the best way to avoid despotism was to curb the forces that become the source of despotic rule. 

In 1971, the American philosopher John Rawls agreed with what Popper was proposing — but only if constitutional means fail to regulate intolerance and the liberties of the tolerant come under threat from intolerant forces. The difference between Popper and Rawls in this regard is minor. The latter did not explain the curbing of intolerant forces as intolerance but as a possible measure in certain conditions. 

Popper’s paradox continues to instigate heated philosophical and political debates. It is also present in the recent debates in Europe and the US on the current state of democracy in these regions. When, from the early 2010s, right-wing populists began to breach mainstream politics and accumulate electoral support, they were seen as destructive forces that were manipulating the tolerance inherent in liberal democracy to undermine it, in a bid to shape an intolerant order. 

Some political thinkers are of the view that democracy should be regulated in such a manner that those who are using it to come to power (‘to impose illiberal policies’), are kept out of the mainstream. Of course, critics of this kind of thinking can’t help but point out the contradiction in this: liberal democracy using illiberal means to curb forces that it claims of being illiberal. Isn’t this actually exhibiting the failure of liberal democracy, they ask? 

But one can evoke Rawls here. If democratic tools and mechanisms fail to mitigate or neutralise an existentialist threat posed by certain forces, it is not really the failure of democracy as such, but of the limited means available in constitutions to address this threat. The solution then lies in beefing up constitutional means so that the threat can be tackled in a more democratic manner. 

Currently, Pakistan is in the midst of a war between the parliament and a major section of the judiciary. The parliament, and/or the ruling coalition, is being backed by the military establishment (ME), whereas the segment of the judiciary is using the shoulders of the jailed former prime minister Imran Khan to assert its ‘independence.’ 

The populist former PM has willingly allowed this because he sees the judiciary as reflecting his supposedly ‘anti-establishment’ disposition and of the possibility of it providing him his get-out-of-jail card. All protagonists in the tussle are claiming to be fighting for the ‘sanctity’ of the constitution. The ruling coalition has accused the judiciary of “rewriting the constitution” on various occasions to aid the ‘destructive’ Khan and to undermine the parliament. 

Khan and the ‘activist judges’ have accused the coalition of passing legislation and ordinances to “clip the wings” of the judiciary, undermine its ‘independence’, and banish a ‘popular’ former PM from politics. So, which of these is the intolerant force? Historically speaking, and inherently, they all are. 

For example, historically, the ME, the parliament and the judiciary can all be accused of tolerating certain strands of (religious) intolerance that have swamped the country. Instead of being intolerant towards this nature of intolerance, these institutions not only tolerated it but actively aided it for cynical political purposes, radicalising what was once a ‘moderate’ society. So, keeping this in mind, one will have to analyse the current crisis in an ahistorical vacuum.

It is the parliament’s prerogative to write or amend the constitution. If need be, the Supreme Court (SC) can interpret it (‘judicial review’). But as tensions between the parliament and judiciary intensify, some SC judges have clearly overstepped certain lines in interpreting the constitution. They have done this in such a manner that it has attracted accusations of them rewriting the constitution to aid Khan and their own positions and cliques. 

The ruling coalition is planning to introduce amendments in the constitution to shield itself from activist judges. Indeed, this is a cynical, self-serving move. But this move can be justified as a way to mitigate the alleged politicisation of the judiciary. The legislative and the executive branches insist that they cannot tolerate the judiciary’s intolerance towards the parliament’s constitutional prerogatives.

The ruling coalition has accused certain high court and SC judges of trying to undermine the parliament and of going out of their way to facilitate the position and narrative of a ‘destructive’ force (Khan) who, allegedly, wants to return to power and install a despotic, one-party rule. 

I believe the activist judges could have presented their case in a more convincing manner had they not used a controversial politician’s shoulders. Khan has become too controversial and polarising a figure. And why do the activist judges need such a figure? This is only strengthening the perception that these judges have become overtly politicised and ‘intolerant’ towards the parliament.

Published in Dawn, EOS, September 29th, 2024