Essay On Judicial Activism In Pakistan
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Wednesday, January 30, 2013
Judicial Activism in Pakistan
Judicial Activism in Pakistan
The advent of parliamentary democracy in 1985 marks a water-shed in Pakistan’s political development. The renewal and strengthening of the political process has also brought to the fore the concomitant advantages associated with such a process. Pakistan’s print media is growing in the exuberance of total freedom, a luxury it has never enjoyed in Pakistan’s history. A participatory and democratic polity has integrated all foci of separatism in Pakistan. For the first time, there is no active secessionist movement in any of Pakistan’s provinces. Pakistani federalism is at its strongest; regional leaders hitherto hankering for separation are now very much a part of the political process, holding important offices in the center as well as the units.
The most significant blessing of the strengthening of the democratic process has been the assertive stance being exhibited by Pakistan’s superior judiciary. Judicial activism has never been a feature of Pakistan’s polity. Instead, our judicial history is replete with landmark decisions which legitimized executive arbitrariness and extra-constitutional adventures.
Our higher judiciary has condoned, at various times, the dissolution of the first Constituent Assembly and the proclamation of martial laws in 1958, 1969 and 1977. It would be short-sighted to put all the blame for the above on the judiciary alone. A free and assertive judiciary does not grow in vacuum. It needs a free and democratic dispensation to nurture it. Thus, the much talked about judicial activism is a result of Pakistan’s return to constitutional government.
What is judicial Activism?
Before we dwell on the causes and features of judicial activism, let us first understand what it is. A modern democratic state is built on the principle of trichotomy of powers, i.e. the judiciary, executive and legislature have to perform their won designed functions.
However, it has been observed that even in developed polities, the functioning of the legislature and executive leave a lot to be desired. Instead of being vigilant and acting as a check on executive persecution, the legislature becomes its hand-maiden. In addition, it is slack in enacting laws.
To fill the vacuum resulting from this legislative-executive mal-functioning, the judiciary has to assert itself by providing relief to the sufferers of tyranny and by interpreting laws, which are either deficient or vague.
Historically, the architect of Judicial Activism was Chief Justice John Marshall of the United States. In two landmark cases, Marbury vs Madison and Mccullough vs Maryland, he laid the foundation of the doctrine of Judicial Review i.e. the judiciary should have the power to determine whether a law enacted by the legislative or an act done by the executive was constitutional or not. In the 1930’s, Roosevelt’s attempts to pack the supreme court with his favorites back fired.
Judicial Activism in Pakistan:
As already identified, Pakistan’s judicial history is replete with cases like overturning of Maulvi Tamizuddin’s appeal, Dosso’s case and the Nusrat Bhutto case, where the judiciary bowed to the executive’s pressure. However, things changed after 1985.
In the Saifullah case in 1988, in spite of the executive’s strong pressure, it was made mandatory that elections would be held on party basis. Later, the LHC and the SC both declared that the Junejo government was dissolved unconstitutionally. By a very active interpretation of Article 17 of the Constitution, the Nawaz Sharif government was restored in 1993. Had the SC interpreted the article textually, the case should have been heard by a High Court at first instance.
However, it was in 1996 that two landmark cases changed Pakistan’s political landscape decisively. First, the Supreme Court, by repeated instructions to the effect, forced the government to promulgate the Legal Reforms Ordinance, 1996, which separated the judiciary from the executive at the lower level. This ordinance rectified an anomaly and aberration in our democracy, which had been tacitly supported by ever government in order to enjoy political clout.
Then in the path breaking “Judges case” of March 29, 1996, the SC declared that the Chief Justice of Pakistan would have primacy in the appointment of judges to the superior judiciary. The “consultation” with him by the executive, regarding the appointment of judges, would have to be “purposive, meaningful and consensual.” This case has effectively put an end to the executive practice of appointment of judges to the higher judiciary by over-riding the advice of the Chief Justice of Pakistan.
Justice Sajjad Ali Shah thus brought about a “one man judicial revolution” in the country. A novel committee, the Chief Justices Committee was formed, which routinely castigated executive excesses publicly.
After being rushed through Parliament, the 14th Constitutional Amendment was hailed as the remedy against the scourge of floor-crossing, which had de-stabilized the democratic political system in the post-Zia ul Haq era. To this extent, of course, it was a much needed step. However, it was widely criticized for going far beyond the anti-defection intent and eroding the very basis of democracy by stifling dissent and meaningful debate and, thus, violating the freedom of speech guaranteed in the Constitution. Furthermore, by vesting party leaders with sweeping powers to unseat legislators and denying judicial redress to the latter, it was seen as having imposed party dictatorships and political regimentation.
All these issues went before the Supreme Court and its 6-1 verdict has only partially validated the controversial Amendment. The six judges in favor have struck down the portions curbing the legislators’ right to express dissent inside and outside Parliament. However, almost certainly with an eye to the bitter realities of our political culture, they were unswayed by the conscience-voting argument and maintained the compulsion for legislators to vote according to party dictates so as to “bring stability to the polity” by eliminating floor-crossing.
Even in allowing this right of verbal dissent, there was a 4-2 split among the honorable judges. Justices Saiduzzaman Siddiqi and Irshad Hassan held that even dissent outside the legislature was ultimately damaging to party discipline inside the House and, thus, for political stability generally. The believed that principled dissent required the legislator to resign the seat won under a party flag. Hence, they favored upholding the 14th Amendment in its entirety.
However, the six judges were unanimous in diluting the vast powers given to party bosses by upholding the right of an unseated legislator to seek remedy from the High Court and the Supreme Court.
In another landmark judgement, the Supreme Court has declared as invalid several provisions of the controversial Anti Terrorism Act (ATA), and asked the government to amend the law accordingly. Headed by Chief Justice Ajmal Mian, a five-member bench of the apex court heard the case, and upheld the view taken by the Lahore High Court in an earlier judgement. Among the specific sections of the Act pronounced as ‘violation of the Constitution’ and recommended for suitable amendment are provisions relating to arbitrary powers given in the law-enforcing agencies to search, open fire and record confessional statements. But, above all the apex court has ordained the jurisdiction of the High Courts over the special courts established under the ATA, abolishing the ‘appellate tribunals’ which were hitherto empowered to hear appeals against convictions by the special courts.
The striking down of the anti-terrorism law, which critics had from day one judged as a hasty and ill-conceived piece of legislation, is a welcome judicial intervention. The Supreme Court, being the watchdog of the constitution, has done what is expected of it. Needless to say, without a system of checks and balances, even the cherished ideal of the supremacy of parliament can end up in the tyranny of the majority. Moreover the casual approach of our elected representatives in the crucial task of law-making is matched only by the pre-occupation of the executive with arrogating to itself the sole authority to run the system. Notwithstanding pious intentions, the government’s prescription to combat terrorism was widely seen as an attempt to circumvent the due process of law, rather than streamlining the system to cope with the imperative of speedy justice.
The Supreme Court judgement has once and for all rejected the concept of summary trials, and dealt a blow to the executive-sponsored moves to create a parallel judicial system. Thankfully, the apex court has held in check the pronounced tendency for arbitrary functioning. It has reaffirmed the independence of judiciary, and thus safeguarded fundamental rights and civil liberties. Hopefully, this message has been forcefully brought home to the government. There should now be no “ifs and buts” in its response to the Supreme Court’s verdict to recast the Anti-Terrorist Act.
Activism In Aid Of The Oppressed:
Perhaps the brightest side of Pakistan’s tryst with judicial activism is the increased relief being provided to common citizens in the shape of Public Interest Litigation and suo moto notices. Justice Nasir Aslam Zahid provided relief to thousands of illegally incarcerated youth during 1993-1996. He also stood up against the building mafia. He provided sue moto relief in the famous Feroza Begum case when he ordered the release of a tortured MQM worker, whose mother was being forced to change her party loyalties.
The Bright Side:
Judicial activism is the last refuge against an arbitrary and irresponsible government A vigilant judiciary upholds the constitution, confining the legislative and executive to their constitutional spheres. It acts as a check against the privileged power abusers of the society i.e. the building, crime and drug mafias, corrupt parliamentarians and the influential ‘law molders.’A benevolent judiciary alleviates the agony of the underprivileged by providing suo moto relief.
The Dark Side:
However, if judicial activism is hijacked by individuals for personal aggrandizement and not for the common man, then it can bring to a standstill the whole government machinery. This was witnessed recently. Because of the whims and caprices of one man, the judiciary, instead of asserting itself for upholding the constitution, became the center stage of confrontation. Contempt cases and political dueling became the order of the day. Mercifully, the crises was resolved amicably.
However, it was instructive. Judicial activism was well received and admired when it was exercised in public interest. However, when activism was turn into a personal vendetta even after the five judges had been appointed to the Supreme Court, public opinion decidedly tilted against the Chief Justice.
It is heartening that judicial activism has come to stay in Pakistan. However, we still need to remove constitutional lacunae that impinge on the freedom of the judiciary.
Conscientious judges can be dumped in the Federal Shariat Court. Benches of “troublesome” High Court judges can be changed by executive fiat. All these provision need to be removed from the constitution. Also, we need to expand the judiciary to dispose off the backlog of pending cases.
One must be grateful of the fact that strong democratic traditions are taking roots in our political system. A strong judiciary increases the faith of the common man in the system. It also leads to political stability and constitutional harmony.
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Advocates of rule of law in the US have also come to realise that too much judicial independence can be a bad thing. PHOTO: AFP
Recently in the backdrop of the ‘memogate’ controversy, the honourable apex court hearing a petition regarding the possible removal of the ISI chief and the army chief sought “assurances” from the government that the two would not be removed. Some would think that this is an example of one pillar of state, the judiciary, overstepping its boundaries and encroaching on the mandate of the executive.
In Yale Law Professor Owen M Fiss’s essay The Right Degree of Independence, which deals with the idea of political insularity for the judiciary, an independent judiciary acts as a “countervailing force within a larger governmental system”.
The professor’s argument boils down to this: In a dictatorship, this force can be seen as something positive but issues arise when such a judiciary functions in a democracy. Since the judiciary is insulated from the “popularly-controlled” institutions of government, the judiciary has the power to interfere with the actions and decisions of those institutions thus obstructing the overall conception of popular rule.
The fundamental conflict between popular institutions and the judiciary, according to him, becomes a problem when the latter extends itself past the ambit of the “electoral process or personal freedoms” and branches into the realm of governance. It is important to understand that democratic governance is complicated and requires trials and adaptability.
Globally advocates of rule of law in the US have also come to realise that too much judicial independence can be a bad thing in some cases. Judicial institutions, like other pillars of state, are not perfect and can make mistakes. Striking a balance between maintaining an impartial judiciary while also enhancing government structures, is important for the enhancement of democratic traditions in a state.
The culture of criticising the government has not yet been complemented with the ability in Pakistani public discourse to dispassionately analyse the state. This is not good for democracy because it tends to single out the elected civilian representatives but leaves other institutions such as the military or the judiciary out of public criticism/scrutiny.
Judicial activism will foster democratic traditions particularly if it seeks to build on the capacity of elected civilian governments and if it does not chip away at their writ.