The problem with judicial populism and the idea of polycentricity

Problem of judicial populism is not about direction of populist policies, but about locus of authority

With the change of command at the Supreme Court of Pakistan earlier this month, Justice (retd) Saqib Nisar is not at the helm anymore. The media in the last few days has presented a detailed examination of his policies, politics and his priorities.

Meanwhile, Justice (retd) Nisar, while speaking at Davos this week, stated that the SC under his tenure, exhibited judicial restraint.

Justice (retd) Nisar was not the first populist judge of Pakistan and he will not be the country’s last populist judge. Some claim that this whole matter started with Justice (retd) Iftikhar Chaudhary and the rise, and then the demise, of the Lawyers’ Movement.

There may be an element of truth in this, as Justice Chaudhary was the one who brought judicial activism to the forefront of Pakistan’s political discourse, at least in recent memory. Nevertheless, he still was not the first judge to do so.

The central problem of judicial populism is not simply about the direction of the populist policies, but about the locus of authority. We often make this mistake in terms of understanding social and legal phenomena, that we bypass principles and procedures if the ends are amenable to our motives. This is not how institutions are built, this is not how institutions are sustained, and this is not how institutions are understood.

The problem with judicial populism is one of approach and methodology, which goes against the very grain of what the judicial institution is about. Judiciary is, ultimately, a guardian but also a creature of the law. Of course, law here is more widely defined and includes a set of principles much greater than the codified manifestation.

Law is judiciary’s main source of strength; it is the basis of its juridical authority and enforcement powers. The fact that even this principle has historically been bypassed in our country is evidence of our collective creativity as well as of our penchant to test institutional limitations.

Many of our judges have traditionally looked at other sources for legitimacy and strength, including turning to individuals, political parties, ethnic affiliations, governments in power, and other state institutions.

Justice Chaudhary or Justice Nisar were not doing anything that their predecessors did not do — it is perhaps just that they identified their source of legitimacy with the wider public discourse which forced them to remain in the public eye. Regardless of the direction the policies would go in, it is the methodology itself that dents the nature of the institution.

And looking at how things stand at this time, there is no sign that Justice Nisar has left the judiciary any different from how it was when he took charge. During the last tenure, there has been no major change in the structure of the institution, no change in its course of direction, no change in how the institution functions and, without these, there is no real sign that a change will immediately occur.

Yes, the incoming honourable CJP, Justice Asif Saeed Khosa, has indicated that he will take a different approach, and the next two tenures can hopefully guide the judiciary towards a different path.

But it will take time, and it will take a concerted effort, both from within and outside the judiciary. Yet, once again, the key issue is about the nature and structure of the institution rather than the effort of one individual.

Judicial populism has been part of our legal history for some time, and is part of a growing trend of judicial activism that countries such as Brazil, Colombia, India and Kenya have also experienced.

Many of these countries have faced similar problems and judiciary is seen as an answer to inefficiency, corruption and power politics. Judiciary begins to see itself as the solution to all the problems that other state institutions and elected governments are unable or unwilling to deal with, and consequently starts making decisions which are otherwise reserved for other institutions.

This is exactly how the dam fund appeal, price regulation or control of infrastructure development arose during the last tenure.

The fact that judges are unelected and not representatives of the people or the notion that their accountability is not within the public sphere are problems cited by scholars opposing judicial activism generally. I have also already alluded to the issue of judges playing to the public gallery. But the concept of polycentricity poses a much bigger challenge to the notion of judicial populism.

This approach suggests that the state/government on the whole is a polycentric institution, which has an overview, legitimacy and resources to consider a situation from many different perspectives and undertake measures on various fronts to bring about change.

For instance, a state responsible for constructing a dam has many different options at its disposal — it can choose to build a dam or not build one; if it decides to build one, it can gather expert advice on which project is more suited in the context of societal, national, local and agricultural needs.

It can investigate and decide which waterways will be affected by climate change and water shortages, or that which waterways fall under which international legal regime. It can decide which projects can be prioritised; it can identify and bring stakeholders together and be an arbiter between competing interests.

It can lobby communities; it can give compensation to people if land is submerged or livelihoods lost; it can talk to other people and to other countries if the finances are short. It can repurpose government assets, ask for loans, acquire aid, formulate partnership agreements, invest in economic growth and then direct funds from other budget heads.

The courts, on the other hand, can do almost none of these things. Judicial populism, and judicial policymaking based on populist politics can either take a very partial view in these matters and therefore cannot be implemented.

On the other hand, even if these decrees are implemented, they assume a nature of external imposition rather than an implementation of the law based on a well-considered policy. Courts and such organisations by themselves are not polycentric institutions but fulfil a core function and therefore they must work together in synchronisation.

Hopefully our honourable CJPs can recognise that while courts dispense justice and are constitutional guardians, they also have their blind spots. And these blind spots cannot be overcome by bypassing other institutions, but only when the public sphere operates as a synchronous set of institutions safeguarding the collective interests of the people.

Published in The Express Tribune, February 2^nd, 2019.

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