On judicial activism

There are limits

Judicial activism is a common feature in countries where parliaments are not sovereign and instead have constitutions emphasizing separation of powers and judicial review. It is, however, only in Pakistan where judicial activism has led to the dismissal of an elected prime minister and threatens to send home a second one. The core issue is whether the apex court can take away the constitutional immunity granted to the president against litigation.

Dr Ali Qazilbash, a professor of law at LUMS, argues that there was very little room for un-clarity on the issue of presidential immunity in the constitution. Justice (rtd)Fazal Karim, however, maintains that while the basic premise of immunity was clear, there was, nonetheless, a fair amount of room for judicial interpretation and key questions could be raised by the Supreme Court, partly because the issue of immunity had not been invoked in Pakistan till now.

In his interview with the BBC, eminent lawyer Aitzaz Ahsan who defended Gilani in Supreme Court insists that the constitution clearly stipulates that the head of state could not be prosecuted. Earlier, former judge of the Indian Supreme Court Markandey Katju had remarked, “Pakistani Supreme Court, particularly its chief justice, has been showing utter lack of restraint. This is not expected of superior courts.” According to Katju, taking a cue from the “principle in British constitutional law, almost every constitution in the world has incorporated a provision giving total immunity to presidents and governors from criminal prosecution.”

The Supreme Court has also struck down the contempt law passed last month by parliament on the basis that it is unconstitutional. While the apex court has the authority to declare any primary legislation null and void if it considers it violative of the constitution, the power is usually exercised rarely and with restraint and only in cases wherein fundamental rights specifically enacted in the constitution were directly affected by the offending statute or law.

Fears are being expressed that an overzealous court in its pursuit of judicial activism might even prevent the parliament from exercising its right of amending the constitution with two-thirds majority.

Judicial activism has played an important role in a number of countries as long as it has remained within limits. Ten years before President Johnson signed the Civil Rights Act of 1964, US Supreme Court passed the landmark Brown v. Board of Education verdict, which ended segregation in schools. A lead was, thus, provided by the court to reluctant politicians fearful of political backlash from the white population in the South. The European Court similarly enacted the law ensuring equality for women in workplaces which many governments were unwilling to pass.

Politicians have an ambivalent attitude to judicial activism; supporting it when it suits their political ends and opposing it when it doesn’t. The trend is not specific to Pakistan but is universal.

In 2005, as one of only 22 senators opposing the confirmation of John G Roberts as Chief Justice, Obama stated he would support the appointment of a judge “who upholds the Court’s historic role as a check on the majoritarian impulses of the executive branch and the legislative branch.”

In April this year, with Obamacare under attack, he warned the Supreme Court against the perils of judicial activism. Specifically, he warned against the court ruling the Obmacare unconstitutional. “Ultimately,” said the president, “I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

Judicial activism can be particularly helpful in a society where the governments are unresponsive and the administrative machinery is by and large dysfunctional as is the case with Pakistan. This explains why many had welcomed when the Supreme Court took up the cases of police torture, missing persons, gross injustice to the common man and ordered the probe of scams involving powerful politicians and businessmen.

The Supreme Court, however, at times intervened in matters that were beyond its capacity. This wasted the court’s precious time without producing the desired results. The court’s attempts to bring under control the prices of sugar, petroleum and power rates for instance met with no success.

The way the apex court determines the priority of the cases to be taken up has raised eyebrows and rightly so. For three years, it decided to ignore Air Marshall Asghar Khan’s petition on ISI’s financing of selected politicians while it took up several cases of lesser national importance during the period.

Judicial activism is a double-edged sword and has to be exercised with caution. Temptation to use power must not lead to actions that create political uncertainty and thus have a negative impact on national economy and law and order. It must not lead to a situation wherein crucial talks with foreign countries aimed at resolving vital issues are stalled because of the uncertainty about the continuity of the country’s political administration.

The writer is a former academic and a political analyst.