Beyond judicial populism

While invoking ‘independence of judiciary’— Court often neglected that judicial independence is not an end in...

In his farewell address on December 11, outgoing chief justice Iftikhar Muhammad Chaudhry described a Supreme Court that grew increasingly populist under his tenure. While recounting the unprecedented autonomy that the Court exhibited vis a vis General (retd) Pervez Musharraf’s military regime, he emphasised even more its assertions of autonomy from Pakistan’s post-Musharraf civilian government. Chaudhry highlighted the Court’s efforts to enforce fundamental rights and scrutinise the executive’s “far from perfect” public administration and decried the “ever-growing cancer of corruption” in politics.

Chaudhry’s comments reflect a dramatic shift in the Court’s self-conception, as its judges increasingly articulate the Court’s institutional identity and legitimacy as deriving directly from the Pakistani people. This populism has been vividly in evidence in the Court’s decisions in recent years.

But these decisions have also been rife with irony. While the Court increasingly exercises its suo motu powers to adjudicate fundamental rights questions, it has given surprisingly little attention, for an institution defining itself in populist terms, to the many problems facing the lower courts, where ordinary Pakistani citizens remain much more likely to encounter the judicial system. Nor has the Court been entirely consistent or transparent in exercising those suo motu powers.

Moreover, the discourse underlying the Court’s decisions has often reinforced the very discourse that military leaders themselves have used to delegitimise civilian democratic rule. Just as Musharraf and General Ziaul Haq explicitly rationalised the military’s political interventions as justified by civilian corruption and incompetence, the Court has self-consciously justified its own forays into the political process in strikingly similar terms.

For example, when it invalidated the National Reconciliation Ordinance, the Court issued a wide-ranging opinion excoriating Pakistan’s civilian politicians for corruption and lack of morality. Remarkably, the Court explicitly rested its decision in part on the Zafar Ali Shah case — an extraconstitutional decision that invoked Musharraf’s allegations of corruption and incompetence as a basis to validate his 1999 coup, and which was issued only after the Court’s judges were forced to take new oaths of allegiance to his regime.

When it later ousted former prime minister Yousaf Raza Gilani for failing to implement that decision, the Court invoked constitutional provisions requiring members of parliament to be “sagacious, righteous and non-profligate, honest and ameen”. These provisions — premised upon mistrust of the integrity of elected politicians — were originally imposed by Zia as an instrument to manipulate civilian politics.

The Court’s 2010 decision ordering the election commission to investigate and punish legislators who had falsely claimed to possess university degrees — as a means of evading the eligibility requirement imposed by Musharraf soon after his coup — carried similar implications. Since the Court already had invalidated that requirement, the decision had the effect of resurrecting and giving effect to a discredited rule that not only had disqualified the overwhelming majority of Pakistan’s citizens from ever holding elective office, but also had institutionalised the antidemocratic logic of the military’s political takeover.

In a country shifting away from authoritarian military rule, these are hazardous roads to follow, since they risk further delegitimising representative institutions that are not yet fully consolidated. In fashioning this role as the ultimate arbiter of political integrity and morality, the Court also has frequently invoked ‘independence of the judiciary’— but has often seemed to neglect that judicial independence is not an end in itself. Rather, it exists to serve other goals, including democracy, constitutionalism, fundamental rights, the rule of law.

Advancing those goals requires not unconstrained judicial autonomy, but rather an appropriate balance between judicial autonomy and constraint, along with empowered representative institutions with strengthened governance capacities, democratic legitimacy and sufficient power to resist the military and affiliated interests. A Supreme Court that genuinely understands itself as legitimised by the Pakistani people also has an interest in stronger representative institutions and stronger lines of accountability to those institutions.

As former Justice Albie Sachs of the Constitutional Court of South Africa has written, the legislature, executive and judiciary are all involved in the “common constitutionally-defined project to improve the lives of the people and protect human dignity, equality and freedom”. Since Chaudhry’s restoration, however, Pakistan’s Supreme Court and representative institutions have struggled to achieve a modus vivendi that advances a shared commitment to constitutionalism and democratic consolidation.

Writing about the widely-criticised recent decision by the Supreme Court of India reinstating Section 377 of the Indian Penal Code, Fordham University Law School Professor Sonia Katyal has noted that “courts are not the only source of guidance in the arc toward justice". Nor should they be. Under Chaudhry, Pakistan’s Supreme Court took important steps to place fundamental rights and constitutionalism closer to the heart of its own identity than ever before. The long-term challenge for his successors is to ensure greater transparency, consistency and accountability in doing so — and to ensure that other actors, including Pakistan’s people, representative institutions and lower courts, are also empowered to advance those shared goals.

Published in The Express Tribune, December 24^th, 2013.

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