Judicialisation of politics

“Political dirt should not be laundered in court,” observed the Chief Justice of Pakistan some days ago in a petition filed against Imran Khan by Hanif Abbasi. It was perhaps a reminder to all political groupings that they should not resolve their differences through the courts. To take recourse to the courts to settle all kinds of contentious issues is indeed an anomaly and not a normal practice.

The concept of modern democracy also demands that all the three pillars of the state work strictly within their own parameters. But with the growth of democratic institutions and expansion of rules and procedures of electoral politics, the reliance on courts has universally increased all over the world, especially during the last three or four decades. And Pakistan is no exception to this trend.

Pakistan’s political life has a chequered history and the phenomenon of ‘judicialisation of politics’ started soon after independence when we witnessed four military interventions. Each time the coup-makers looked up to the courts and found them ready and willing to oblige them by invoking the two available political doctrines: 1) the good of the people is the supreme law, and 2) that which is not otherwise lawful is made lawful by necessity. This contributed to a truncated constitutional culture with weak democratic norms and institutions. Thus regime legitimisation through judicial endorsement in the wake of direct martial law was the most overt example of the judicialisation of politics in Pakistan. The interregnum between one martial law and another was a period of grave insecurity. The first smooth transfer of power occurred in 2013 which was in accordance with the Constitution. In the sphere of ‘mega-politics’, the courts invariably validated military interventions, and the military dictators gradually reverted to a semblance of civilian rule by keeping themselves fully entrenched in power as presidents. This gave rise to a more pernicious mode of military control of politics. Between 1988 and 2007 four successive governments were dissolved by three different presidents. Each dissolution was taken to the court and the test to gauge its legitimacy was also changed on case-by-case basis.

In a democracy, decision-making is based on the majority principle and a free debate among equals. But does a system of justice (ie, courts) connote the same meaning? The courts are composed of judges with legal training. The resolution of conflicts between two parties is done by the courts according to the pre-existing rules by weighing their respective claims. The political issues obtain their sanctity due to the popular will which they implicitly carry. The courts’ decisions on the other hand are based on the postulate that all human conduct within the state is subject to the Constitution which symbolises popular will more firmly than any other organ or instrument.

Under the modern democratic governments, judicial institutions and legal processes have acquired an undisputed public and political significance, as judges are called upon to resolve political disputes and engage in the judicial and legal review of governmental processes. But the process of judicialisation of politics in young democracies does not necessarily imply improvement in regard to the rule of law. And a failure to achieve the goal of the rule of law is a challenge which is faced by the emerging democracies everywhere in the world.

The electoral politics in modern democracies have opened up a vast array of activities, including registration of voters, delimitation, campaign financing, impeachment and disqualification, etc, for the courts to adjudicate upon. The prerogative of the courts to determine this vital sphere of political activity is now universally acknowledged. In countries riven by deep ethnic, linguistic and religious cleavages, the courts carry a greater burden to resolve political questions. In the words of a former chief justice of Israel: “Nothing falls beyond the purview of judicial review. The world is filled with law; everything and anything is justiciable.”

Published in The Express Tribune, June 7^th, 2017.

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