On judicial activism

Too much?

The most challenging task in democracy is to balance rights and rightful role on the one hand and obligations and societal good on the other. They go together. The right of one person is an obligation for other person. This applies to individuals, groups and state institutions because none functions in a vacuum.

Much depends on how a person or an institution interprets the facts of a situation and articulates one’s role. There is a strong tendency to equate societal good and obligations towards others with one’s partisan interests in a society where the norms of democracy are not firmly established. This is more so where the individuals, groups and state institutions do not have a long experience of working in a democratic and participatory framework. Invariably, the desire to expand the domain of authority dominates the disposition of individuals, groups and state institutions. Restraint, moderation and mutual respect become rare commodities.

There is a lot of jockeying for power and influence in the formative phase of democratic transition. This power struggle is often couched in high moral rhetoric or legal and constitutional interpretations to one’s advantage. One troubling tendency is to engage in propaganda to delegitimise democratic processes and leadership if one’s partisan agenda is not achieved. This is also done as a part of struggle to expand one’s power or influence or domain of authority.

It is quite common in Pakistan to invoke abstract democratic theories and principles to delegitimise democratic institutions and processes. There is a tendency to trash democracy because it does not meet the ideal and textbook criterion. Other argument is that there is no use of democracy if it does not solve the problems of the common people. There is no answer to the question as to what is the guarantee of solution of the problems of people in a non-democratic and military-dominated system. If nothing works for questioning the legitimacy of elected rulers or democratic arrangements, Islamic principle or some precedent from Islamic history is invoked to argue that the existing arrangements should be done away with.

An independent judiciary is needed for a democratic political order but this is not the only requirement. It is important that different state institutions like the executive, the parliament, the judiciary, the bureaucracy and the military perform their assigned tasks within the limits of law and constitution and respect each other’s autonomy and role. Any attempt by one institution to overwhelm others causes institutional imbalance and adversely affects democracy and civilian order. Another important principle of democracy is the primacy of elected institutions over non-elected institutions, although the elected institutions and office holders have to function in accordance with the constitution.

We are experiencing a steady attempt by the Supreme Court and the High Courts to expand their domain of action through judicial activism. Though judicial activism is a well-recognised principle for public service and welfare issues but the use of judicial activism and the suo-motu power by the Supreme Court and, at times, by the High Courts, since 2009 has generated a debate in the legal and political circles about the extent to which the superior judiciary can interfere in the domains of other institutions. If we make a list of issues taken up by the superior judiciary since 2009, judicial activism can be described as unprecedented, covering a wide range of issues relating mainly to governance.

Even if a purely legal approach is adopted to examine judicial activism, one cannot help pointing out that the issues taken up by the superior judiciary have political implications in Pakistan’s polarised political context. Most politically active circles get information about court proceedings through the press and TV news channels that highlight the comments made by the judges sitting on the bench. A large number of comments as published in the media can be described as politically loaded. These comments are used by the opposition parties and the media to embarrass the federal government.

Sensing tension between the superior judiciary and the PPP-led federal government, the opposition parties have endeavoured to turn the judiciary into an arena of contestation with the PPP. They have gone to court on a number of purely political issues that should have been settled through political interaction or through the parliament. After having failed to stall the Senate elections by political pressure, the PPP adversaries are now approaching the Supreme Court for stopping the Senate elections due on March 2.

The most interesting case is a petition filed in the Supreme Court by someone on the basis of a speculative report that the prime minister might remove the army chief and director general of the ISI. The prayer of the petitioner is to stop the prime minister from doing that. The Supreme Court wants the prime minister to give a written undertaking for not removing these top army officers. It would be interesting when the Supreme Court takes up the Asghar Khan case involving the ISI and some leading opposition political leaders. There are two other cases that are likely to bring the army/intelligence in focus.

The long term political implications of the possible conviction of the prime minister in the contempt of court case are going to be negative for political stability and internal harmony. If the PPP-led coalition at the federal level stays intact after the conviction of the present prime minister it can elect a new prime minister and thus the present political order at the federal level can continue. What if the new prime minister also refuses to write the letter to the Swiss authorities for reopening of corruption cases against President Zardari?

In case of increased tension between the elected executive and non-elected Supreme Court, the opposition parties are expected to oppose the federal government. This will set the stage for political confrontation and turmoil. If the confrontation between the federal government and the opposition escalates Pakistan’s troubled economy will further deteriorate. This will make the civilian political order vulnerable to strong pressure from the military that will view itself as a stabilising and conflict-managing entity.

Though several internal and external factors are not conducive to military takeover, the military’s capacity should not be underestimated to set aside the civilian order in a situation of acute internal conflict and economic relapse. In case of direct military intervention, the superior judiciary will also be removed. Thus, the decline and discredit of democracy endangers independent judiciary.

The writer is an independent political and defence analyst.