It is through an independent judiciary where judges have the power to decide any dispute without fear, favour or pressure from anyone (including the government) that the culture of impunity can be eradicated and rule of law established. Indeed, this was the reason why the people of Pakistan joined the lawyers’ movement for restoration of judges. The recent decision convicting Prime Minister Yousaf Raza Gilani of contempt undoubtedly proves that the Supreme Court is today as ‘independent’ as any apex court in the free world.
However, the danger is that with increased independence comes the pitfalls of absolute power which can corrupt absolutely. In such situations, the fear is that the judges may start assuming that, as final arbiters, they are infallible and that the law is what they say it is. To avoid this it must be ensured that judges remain faithful to the law and continue to resist any self-indulgence which an excessive sense of independence can produce.
The apex courts have neither the power of sword nor of purse — but the real powerful tool available to them is the jurisdiction of judicial review and the authority to enforce fundamental rights. Pakistan’s superior courts have, over the years, exercised this power carefully and maturely to invalidate certain pieces of legislation and executive actions, but always stayed away from matters which could be deemed policy issues or linked to political debate.
With increased independence came the concept of ‘judicial activism’, which in my view is beneficial and sometimes essential. There are many cases where had the courts not taken a dynamic approach, justice would not have been done. For example, the Supreme Court has decided that the government’s closure of schools in remote areas violates the fundamental right to education. As result, a million students in such areas are able to receive an education. The Court has recognised that an updated and transparent voters list is part of the people’s right to democracy. The courts have also successfully unearthed cases where public wealth was being looted. Such powers would not be exercised if the courts were not independent and judicially active.
Judicial activism however took a risky direction worldwide when the media started playing a role in that the courts began taking up cases highlighted in the media. When such cases are successfully decided by the courts, public expectations that the judiciary is everyone’s saviour started to increase. This is when judicial activism started giving way to judicial adventurism. Judges came to realise that popular decisions brought fame not only to the courts but to individual judges as well. It is only natural that such publicity brings with it a sense of being ‘powerful’ and ‘influential’. The cautious approach of the past began to be considered by some judges to be timid and started being ignored. This is natural. Jurists have long said that things need to be controlled.
Under pressure from the media and the public, some judges in Pakistan are beginning to open new frontiers. The recent case of rental power projects is a good example of the courts delving into matters of economics and policy. The tendency to form commissions to investigate matters sometimes means that the courts assume the role of investigator, prosecutor and judge all in one. The courts have made commissions to recover written-off loans, passed orders for fixing prices of sugar, assumed powers to remove a head of a public-sector corporation on the basis of incompetence and are frequently appointing or removing government investigators. To me, these appear to be examples of going beyond the realm of judicial activism. This is a concern in India as well. Justice VR Krishna, a former judge of the Indian Supreme Court, is among many when he says: “In the name of judicial activism, modern-day judges in India have abandoned the traditional role of neutral referee and have increasingly resorted to tipping the scales of justice n the name of ‘distributive justice’.”
Activist judges have often ignored or side-stepped precedents to arrive at preconceived results, which conform to their conception of justice. However honest and bona fide this exercise, its legal legitimacy is open to question.
No one can be allowed to ignore the law to suit one’s perception or desire of what should be done or to decide cases according to personal whims. This is because absolute power is a negation of rule of law and will lead to judicial despotism. The moment the courts start taking decisions on policy or political matters, their actions become anti-democratic (unlike members of parliament, judges are not elected but selected). Ultimately, the end result will be (and this is a serious issue which Pakistani courts must avoid at all costs) that policy and political matters, for which the courts neither have the machinery nor manpower, will ultimately lead to confrontation with other state institutions. If we look at Pakistan’s judicial landscape, there is increased criticism that all the aforementioned is beginning to happen. In order to avoid this, the courts must consciously leave certain questions to be decided by the will of the people.
Jurists are unanimous in saying that judicial adventurism is wrong and have used the concept of ‘who will guard the guards’ in their argument. Judges agree that the way to control judicial adventurism is through ‘judicial self-restraint’ in which the courts make a self-conscious effort not to decide policy or political questions. Yet, history has shown that this self-restraint does not necessarily work all the time.
To me, if judicial power becomes unbridled and justice to the common man is denied or delayed, true judicial independence is not achieved. It is time that mechanisms are put in place to make the judiciary more accountable by regulating judicial self-restraint and by focusing on the real issue, which is to provide speedy justice to all under rule of law. The only way to achieve this is through the active participation of the Bar, civil society and the media. They are the gatekeepers of judiciary’s reputation, and must be vocal, able and willing to criticise judgments, without fear of contempt. This is the only way that the judiciary’s true independence will be achieved.
Published in The Express Tribune, May 1st, 2012.