Judicial Activism, Conflict and Democracy
A legitimate alternative to military intervention
by
Afshan Bangash
Conflict is said to be inevitable in any democracy. Political conflicts in Pakistan have most often resulted in intervention by the armed forces. As a result, Pakistan's political system has been swinging between the eras of democracy and dictatorships almost every two decades. The democratic potential manifests itself through public pressure for restoration of democracy after each "cyclic share" of authoritarian rule. However, one cannot turn a blind eye to the fact that whenever military took over, a loud sigh of relief was heard from this significantly large middle class of the country. That is due to the corrupt practices associated with the politicians and the weaknesses of governance. Does Pakistan have any constitutionally legitimate alternative to military intervention in order to deal with political conflict, governmental corruption and social chaos? The answer may be embedded in the much debated subject of "Judicial Activism".
Pakistan has paid a heavy price for a submissive and dormant role of its judiciary in the past several decades. Conflicts on the acceptability of "electoral mandate" as the ultimate source of political legitimacy brought the Sindhi nationalist elite into the mainstream politics and thus nurtured separatist tendencies after 1970 and the subsequent ethnic movements in, the NWFP and Baluchistan.
In General election of 1970, Awami League, the largest political party in East Pakistan, led by Sheikh Mujibur Rahman won a landslide victory in the national elections. This gave Awami League, the constitutional right to form a government but it was not allowed to do so. Conflict arose. Pakistani nation saw the military regime and politician acting as mediators, who, themselves were the biggest stake-holders in the conflict. Talks began. Talks failed. Rahman called for a nation-wide strike which eventually led to secession of East Pakistan. The 'absence' of an independent judiciary from the literature on the East Pakistan relates the story of a passive, detached and submissive judiciary, which was not capable of intervening to prevent, diffuse or resolve the most serious national conflict of our history, which went out of hand due to military and politician's excessive attitudes and personal agendas.
Proponents of 'judicial power', 'judicial review' or for that matter, 'judicial activism', argue that like executive and legislative institutions, the judiciary can best serve democratic system when it acts in conformity with the "fundamental values" of democracy. This, nevertheless, gives rise to another very vital problem, stemming out of the potential role of "unelected" judges trumping the "will of the people," as expressed through legislatures, with their own values and ideologies.
In America, a section of scholars is of the opinion that judicial review is appropriate when "necessary" to make the democratic process work effectively and also when "necessary to vindicate certain individual rights".
In India, the Supreme Court took suo moto cognizance of numerous matters involving the abuse of prisoners, bonded labourers and inmates of mental institutions, through letters addressed to sitting judges. In a more recent pronouncement in I.R. Coelho v. State of Tamil Nadu Judgment of 2007, a unanimous Bench of 9 judges vigorously reaffirmed that 'a constitutional amendment which entails violation of any fundamental rights which the Court regards as forming part of the basic structure of the Constitution then the same can be struck down....'. However, the Indian Supreme Court, to a large extent, refrained itself from indulging into purely economic matters.
The main role of Pakistan's apex Court is more or less the same as India or elsewhere, that is, to interpret the law embedded in the constitution of the country. However, Article 184(3) of the Constitution gives the Supreme Court of Pakistan powers to take suo moto cognizance of matters pertaining to fundamental rights of the citizens. If the parliament, in certain circumstances, wants dilution of the judicial powers and functions, it will have to pass a new amendment to the constitution which again is subject to judicial review by the Court itself.
However, there are quite a few examples from various democracies, where active judicial intervention led to another larger conflict between the government and the judiciary. Even in a democracy like India, for instance, there has been an embarrassing era of intense Judiciary-Executive confrontation from mid 1950s to early 1980s. There have been occasions in the past few years, when Britain's judges were warned by the British government against "aggressive judicial activism" in the form of judicial opposition to anti-terror measures, which could "put the country's safety from terrorists at risk, and "undermine public faith in the justice system". Back in1930s in America, such conflict emerged when President Roosevelt made failed attempts to pack the US Supreme Court with the judges of his own choice.
In Pakistan, the most recent manifestation of the seriously rising Judiciary-Executive conflict was seen on 11 March 2011, when PPP' MPAs from Sind Assembly brought out a rally from the assembly building to the Sind High Court (SHC) in Karachi, against the Supreme Court's verdict that declared illegal the appointment of Justice (r) Syed Deedar Hussain Shah as Chairman National Accountability Bureau (NAB). Other recent orders and directives by the apex Court and the sub-ordinate courts include removal of former National Bank of Pakistan' president Ali Raza, the mobilization advance returns to the government by the Rental Power Projects, directives to remove Waseem Ahmed from his position as DG FIA and the arrest of former minister for religious affairs Hamid Saeed Kazmi on Haj corruption charges, all fiercely resisted by the PPP led government.
Despite the rising difficulties, in Pakistan, the current Judiciary-Executive confrontation does not seem to be a direct threat towards derailing of the present democratic set up. The real threat faced by the government still remain the popular resentment over governance inefficiencies, a possible military takeover, and the increasing differences between the government and its political allies.
The constitutional tracheotomy of power comprising Legislature, the Executive and the Judiciary has no place for military role in politics. The present judiciary in Pakistan, on the other hand, has not been imposed by the establishment but was brought into office due to a popular movement in the urban areas of Pakistan. An active judicial role exercised by an independent Judiciary can be a democratic and constitutionally legitimate means to strengthen democratic system, by protecting constitution, preventing injustices, curbing corruption and excessive behaviours, provided, the whole thing does not go 'overboard.'
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