Is the Judiciary the Government?

Public policy is the domain of government. If judiciary starts intervening in that, what need is there of government?

The constant intervention by the different arms of Pakistan’s judiciary in the public and economic matters and affairs of the state of Pakistan, seems to have moved it from its earlier manifestation of activist, to vigilante. It is playing a populist role by intervening in government decisions, often overturning and challenging them, which range from the price of sugar, to lowering the price of CNG, to overruling the government’s decisions about mobile phone closures during the eid holidays. It is irrelevant whether these interventions are considered to be correct, just, popular, or in the so-called wider ‘national interest’. The main concern here is whether the judiciary is trying to run the government, and if that is the case, what need of government?

The enthusiasm and respect for the judiciary in many of its path-breaking, but, one must add, overly delayed, decisions, is certainly justified, for the judiciary has tried to correct many of its own wrongs from the past, as well as those of an institution which it now eclipses in many important ways, that of the military and the ISI. The proactive stance of the judiciary has been celebrated and many who had lost hope in the process of justice in Pakistan, have found a new champion. The judiciary’s interventions in strengthening democracy will also be recognised as an important achievement for years to come. However, the questions which emerge are regarding the judiciary’s mandate, its boundaries, and whether it is interfering in areas where it may not have expertise or any business to interfere in the first place.

The judiciary responds to petitions put up to it, which means that it consider a very diverse set of issues. It also dismiss petitions, and some are delayed by years, or even decades, as we have seen. It is not clear what sort of expertise the judicial establishment has to decide issues of economic and fiscal matters. A cut in the price of CNG is a very popular decision, but it has major ramifications on a host of other factors, all of which are interlinked. For a start, government revenue will fall, and if the government raises the price of petrol or diesel to compensate for the fall in revenue, will the judiciary intervene again? Interventions of such sort have multiple repercussions and need to be thought through.

However, the issue here is not about the price of sugar or CNG, but about who decides, and about who is responsible for public policy. If the judiciary can lower the price of CNG, why should we complain when another unelected institution suggests that it will bring about enlightened moderation? What if the judiciary felt that the public mood was one of ‘liberalism’, or ‘enlightenment’, would it pass a judgment on how an elected government ought to devise its policies to follow the judiciary’s wishes? And what is wrong then, with the military taking over, lowering inflation and the price of CNG, bringing in lifestyle liberalism, and economic growth?

Public policy is the domain of government. Elected governments also know that they seek re-election, and the price of CNG matters to them perhaps even more than it does to the judiciary, as should the fiscal status of the state. If the government has been entrusted to undertake certain policies on behalf of the electorate, they ought to have the expertise and knowledge of what is better public policy. At times they will need to be populist, but at others they will make unpopular decisions. Governments do make wrong decisions and are often responsible for making a mess of their mandate, as the incumbent government has accomplished. In a few months one will have the opportunity to pass judgment on its performance. Of course the judiciary and media have a role to play in overseeing government activity, but the extent of vigilantism and intervention is what is in question here.

The same logic and enthusiasm which supports an activist judiciary makes the case for an activist military. Unelected civilians and unelected military personnel do, of course, differ in their demeanour, and at the moment most people prefer the former. But what if the military were to intervene and lower all prices, not just for CNG?

Published in The Express Tribune, October 27^th, 2012.