Being all-powerful doesn’t suit anyone. It suits those who live under it even less. It is Hobbesian in its mercilessness and is like Gilgamesh for those who support it. Restraint is the advice to those who become powerful. Those who are reduced to being lambs ready for slaughter endanger the world with their deep-seated victimhood. Restraint is exercised by the powerful to achieve moderation.
Power backed by principles of morality or law can be more dangerous because it gives no quarter. Moral or not, power needs the legitimising hand of restraint.
Markandey Katju, a former judge of the Supreme Court of India, commenting on the Pakistani Supreme Court’s dismissal of Prime Minister Yousaf Raza Gilani, wrote in his article “Judicial responsibility and organs of state” published in this newspaper on June 27: “[Judicial restraint] is particularly necessary for the superior courts, because, of the three organs of the state (legislature, executive and judiciary), it is only the judiciary, which can determine the limits of jurisdiction of all the three organs. This great power must, therefore, be exercised by the judiciary with the utmost humility and self-restraint, otherwise the delicate balance of power in the Constitution will be upset and there will be chaos”.
Power springs from many sources, not all of them legitimate, but it is the powerful who must learn to keep it under control. The Indian Supreme Court and the 28 High Courts under it projected judicial power through public interest litigation for 20 years till 2010, mainly through the exercise of suo motu powers. In Pakistan, too, this has been the instrument of power projection.
Supreme Court lawyer Ashtar Ausaf Ali took exception to the Lahore High Court practice of the suo motu device. Writing in his article “The exercise of suo motu” that appeared in Dawn (March 30, 2010), he stated that the Supreme Court had in 1982 declared that a high court did not have suo motu powers. The outgoing Chief Justice of Lahore High Court in 2012 actually asserted that this power would not be henceforth exercised. In India, too, Justice Katju had similarly restrained the high courts of India.
In 2011, there were close to 1.52 million cases pending in Pakistani courts and approximately 84,700 cases were pending in the Lahore High Court alone because of the ‘activism’ of the then chief justice.
The activist judiciary of Pakistan is backed by the “people of Pakistan” and feels answerable to them. But the most intense protagonists are the lawyers whose allegiance easily morphs into violence. Because of the presence of functioning bars in the districts — Pakistan has over 133 of them — the lawyers’ movement could be called a grassroots movement.
It is in the small-city ‘mofussil’ where the individual citizen learns to believe in violence, substituting ‘monopoly of violence’ of a state with a weak writ. The police and the lawyers’ community usually hail from the small districts acclimatised to feudal violence. The judges cashiered by General (retd) Pervez Musharraf had to rely on the lawyers to increase the pressure on the government to restore them. As a result, the clout of the legal profession has increased vis-à-vis the magistracy in the districts.
The lawyers’ movement has used violence often directed against the police and the magistracy. By adjudicating the Lal Masjid case, the Supreme Court has also made itself safe from violence exercised by al Qaeda and the Taliban whose covert presence in Islamabad is quite daunting.
On the other hand, the prime ministers of Pakistan are not safe from predation. They fear being unseated by a judiciary in activist overdrive and fear being roughed up by the lawyers’ movement, to say nothing of being killed by the terrorists.
Published in The Express Tribune, July 1st, 2012.
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