Perils of judicial activism

Well-wishers of an independent judiciary must convince our honourable judges to show judicial restraint.

Optimism is a perfidious albeit enthralling mistress. Five and a half years ago, we foresaw an era of democratisation and rule of law through a chief justice’s decision to fight a dictator’s decision to sack him. We took to the streets in his support. We protested, were badly beaten, harassed and some of us were even banned for some time. But we never gave up.

It was convenient. Very convenient. The dictator had finally revealed the chink in his armour and we were not ready to let it go. Along with the struggle came hastily put together slogans, poetry and unrealistic promises. The deposed chief justice became a hero. Did we relent for a minute and ponder over the broader consequences of our activism? Clearly not. What we accomplished in form we lost in substance. In our blind pursuit of a solution we have created a bigger problem.

Dictators are bad and very difficult to get rid of, I grant you that. And the dictator in question seemed perfectly invincible as he enjoyed the full support of the Bush administration. But like everything else, military dictators have a shelf life. Even if they live a long healthy life, they grow old and fade away. Since their rule is never considered legitimate no matter how many amendments they introduce when they go, the logical reaction comes in the shape of a strong case for democratisation. However, in this instance, instead of building a case for democracy we ended up developing a strong narrative for the supremacy of the judiciary. Of course, our intentions were misconstrued. There is a huge difference between judicial freedom and judicial supremacy. Only the people should have the last word in any democracy. But here, the equation has changed.

While this could have worked in any other polity, in a country where religious literalism is inextricably linked to the constitution through its preamble it is a recipe for disaster. And ten years of a badly bruising war and accompanying conspiracy theories have stymied free thought and radicalised the polity. In this reactionary environment, the courts thus empowered are forced to work beyond their capacity and often for wrong reasons.

As a consequence, an elected premier has been sent home, laws made by parliament struck down, an army chief’s term in office challenged during an ongoing war, civil servants and military men have thoroughly been harassed and demoralised and the media effectually gagged through the fear of contempt of court notices. The judiciary now concerns itself with fixing prices of commodities, limiting the delimitation process of constituencies to specific cities and appointment of various office-bearers. And despite all this overstretch, it refuses to see terrorism as the existential threat. How many terrorists, I ask you, have been brought to justice through our honourable courts?

Meanwhile, the courts keep acquiring more and more power through their verdicts and resent any external call for audit or accountability. The Supreme Judicial Council, the sole forum to keep check on the judiciary, has already been rendered more or less useless. While the changes brought by a dictator are as momentary as slavery of a man who can be freed any time, the ongoing transformation under the influence of judiciary is akin to rewriting his DNA. These changes are becoming irreversible and if the process not stopped right now to undo them, we will have to write a new constitution. If the transformation culminates into a judicial dictatorship, the relativistic spirit of democracy will be killed by a form of never-ending totalitarianism considered legitimate by many. This is unacceptable.

And as someone who was among the first batch of protesters against General (retd) Pervez Musharraf’s decision to maim the judiciary, let me be clear that I am not advocating for any arbitrary attempt to bring change in the judiciary. The purpose is to remind the well-wishers of an independent judiciary to bring some common sense back to the system and try convincing our honourable judges to show judicial restraint.

Published in The Express Tribune, December 30^th, 2012.