Judicial Activism and Orientation: A Mixed Blessing

The current situation with respect to Judiciary merits several questions. Is there any scope for Judicial activism or Parliament should have the sole supremacy?  Assuming there is some scope (either through constitution or due to “necessity”) what are the desirable limits from political cum social point of view? What explains the current conservative orientation of the Judiciary? Was the lawyers’ movement a just cause or a vehicle for reactionary elements to direct the country towards further conservatism? What problems can occur due to the current ongoing tussle between Government and Judiciary?  This article tries to analyze the above questions.  

By Raza Habib Raja

Right now the country is embroiled in a rather destabilizing controversial tussle between increasingly hyper active judiciary and Government. Judiciary is actively pursuing a policy of activism as compared to judicial restraint and even 18th amendment which had unanimous support of political parties is right now under review and during session the remarks of the honourable judges are indicating that Judiciary may clamp the wings of the parliament.

Judicial activism obviously stands for an active court which is not exercising judicial restraint and is quite ready to even enter into the reign of executive and in fact even at times policy making domain. An important component is of judicial review through which courts can review and decide whether a certain act passed by the legislative is unconstitutional or infringes basic rights of the people. Another related issue is the Judicial orientation ( i.e. whether judiciary is ideologically moving towards liberal or conservative side).

 The ongoing judicial activism is difficult to be categorized as “good” or “bad’ mainly because it is trying to affect complex and at times interconnected variables in our society. The perception about it will also vary from person to person depending on his/her OVERALL political orientation.

Within liberal community the opinion is somewhat divided but most are worried due to a string of recent decisions regarding banning of websites and releasing of controversial individuals like Hafiz Saeed. Those who support it are also cautious as Judiciary while cracking on corruption is also veering towards reinforcing conservatism. The role of Lahore High Court is particularly a cause for concern. In my personal opinion while there is some limited scope for judicial activism but at the same time the judicial orientation is a cause for concern. On the good side Judiciary is instilling a culture of some accountability but on the flip side it is also showing strains of excessive activism and increasingly conservative orientation.

The current situation merits several questions whch have been outlined in the introductory part of the article. Let’s try to evaluate these.

IS  THERE  A SCOPE  FOR  JUDICIAL  ACTIVISM?

In a developing and for that matter even in developed countries there is a limited scope for judicial activism and in fact it emerges due to some gaps in the political cum accountability structure. One argument is that judicial activism is essential to prevent tyranny of the majority. But in a developing country’s context the rationale is multi dimensional and extends beyond protection of the minority rights.

In developing countries with underdeveloped electoral process generally the public alone cannot provide full accountability. Public mandate does not necessarily reflect complete will of the people due to principal agent problem and moreover votes received in an election do not necessarily validate every step taken by the Government during its reign. Voters eventually appraise the OVERALL PERFORMANCE of a party, not every step. So therefore claims that if voters do not approve of a particular controversial step, they will vote the party out in the next elections is not a valid argument. In addition in Pakistan the rural urban dichotomy exists in which the rural voter is generally appraising the candidate on the constituency level performance rather than on National and Policy issues. Votes received thus do not mean that voter is endorsing the national policy stance of the political parties.   Due to this factor, there is a legitimate rationale for Judiciary and Media to keep a check on the government during the interim period.

In fact the lawyer’s movement to some extent was the outcome of these factors. An objective analysis while being sceptical of Judiciary and for that matter lawyers’ current behaviour has to admit that the genesis of the lawyer’s movement were due to real and genuine need to separate judiciary from the executive. That is precisely why the civil society (which is comprised mainly of the liberal element) was supportive of the lawyers’ movement. One has to understand that in Pakistan governance has often been an issue and the excesses of the executive have often been a cause for concern. In addition in democratically elected governments, the executive has often used the public mandate argument to justify its excesses. Political manipulation of judiciary has been a norm in Pakistan and all executives whether military or elected have been guilty of it.

In a developing country, where political manipulation is rampant in the absence of proper accountability, the judiciary if it starts becoming independent can assume a more aggressive role for a transitional phase to entrench its separation. In Pakistan to some extent the hyper active courts are trying to do that.

Mind you in most of the developed democracies the separation of powers and independence of courts had actually preceded universal suffrage. This is an important fact which has to be born in mind. In Pakistan this is not the case and therefore provides some rationale for LIMITED Judicial activism.

However, currently in Pakistan the judicial activism is showing signs of exceeding the limits. I think the undue glorification by Media is also playing a role here. Media is constantly whipping up the sensational stuff and is reinforcing judicial stance by glorification. A strange cult is being built around the honourable Chief Justice and the rest of the judiciary is also being exalted. This glorification is actually changing the scope of judicial activism also as it is communicating to the judges that they need to do more and venture more into the area of executive. The central issue is that in a democratic setup the executive is eventually accountable whereas Judges are non elected and hence not accountable. What our media fails to understand that in the long run this will prove catastrophic if such behaviour becomes culturally entrenched. People will expect more and more from Judiciary and forcing it into areas where it should not be venturing. Judiciary by its design is not meant to capture the sentiment of the people. It can only give verdict on issues which cannot be solved out of court. Judiciary by design has to be insulated from people and politics. Independent courts do not mean overly interfering courts. Yes there is scope for what is known as judicial activism but that scope is limited and does not pertain to matters like setting petrol prices!

THE  CURRENT  JUDICIAL  ORIENTATION

Although there is some genuine scope of LIMITED Judicial activism, the issue is that in our case, unfortunately it is coming hand in hand with conservatism and increasing confrontation with the Government which is fully backed by Media.    For me that really is a grave development.  Judiciary presently is showing increasingly conservative behaviour on some issues. While I appreciate Judiciary’s strive to become more independent, I cannot help raising alarm bells over its orientation.

So what explains the current conservative orientation of the Judiciary? To a certain extent the genesis is also in the way the lawyer’s movement evolved.  A critical phase in the movement was when PPP after coming into power withdrew from the movement and decided to take a delaying stance. This important step actually allowed the more conservative political elements to dominate the lawyers’ movement.  After February elections, there was for brief period a wave of reconciliation. During that time period there were also talks of PPP and PML (N) joining and giving NRO a constitutional cover and then ensuring the restoration. Had that materialized then perhaps today the situation would have been slightly different in the sense that at least Government would not have been at loggerheads with Judiciary on NRO.

However, instead of that the newly elected government went on a delaying course. Obviously the immediate task before the lawyers like Aitzaz Ahsan as well as the civil society was the restoration of the Chief justice. For that immediate aim they needed mass support. In Pakistan people normally come out on the street through organizational apparatus of the political parties. The conservative parties provided that organizational apparatus. Eventually it was the political conservatives which marched to Islamabad forcing the Government to restore the Judiciary.

Once restored the judiciary was more inclined to cater to wishes of those who had played a leading role in its restoration. To some extent the present conservative orientation of the Judiciary can be explained by the way the lawyer’s movement evolved particularly in the later stages.

However, a deeper and often overlooked issue is of class. I am not trying to invoke Marxist type of analysis here but mindsets are a product of the class you belong to. Judges mostly hail from the urban middleclass which by and large is conservative. Thus the majority of the judges are likely to have a conservative view of the society. On ideological issues this view may reflect in their decisions. Moreover, the Judiciary since it hails from the middleclass, at some level shares the same mistrust of the political class which the middleclass has. The schism  between the elected and the non elected power brokers is very large in Pakistan and unfortunately shows no signs of reducing.

A related issue is of the law itself. It has often been said by the sociologists that law itself is mostly an expression of middleclass morality in most of the countries. With an increasing independent judiciary, the adherence to rule of law would eventually strengthen conservatism as the law at least in Pakistan is conservative.

CONFRONTATION  WITH  THE  GOVERNMENT

Right now the Judiciary is increasingly confrontational with the Government. If this worsens it would harden the judiciary’s stance on several issues. Furthermore increase in confrontation with the Government will also ultimately result in government not honouring the Judiciary’s decision and thus weakening the later. This is an important point which the Judiciary as well as our firebrand sensation loving “independent” Media needs to understand.

Right now all the three major stakeholders: Media; Judiciary; and Government need to show maturity. The mediation between Government and Judiciary is extremely essential and people like Aitzaz Ahsan can play a meaningful role. Maturity needs to be exercised particularly by the media who is bent upon glorifying Judicial stance in the name of “Azad Adlia” (Independent Judiciary). Judiciary needs to understand that while limited activism is warranted but its current stance is showing signs of exceeding the limits and selective targeting of the Presidency is also making its neutrality suspicious.

2 Comments

Filed under Activism, Judiciary, Justice, Pakistan

2 responses to “Judicial Activism and Orientation: A Mixed Blessing

  1. M Noor

    Good article, this is a very complex topic to write about in one article. Arguments for and against exist for activist strain in the judiciary. The governance of the country has been seriously lacking, and now with activist judges people are at least seeing something being done. However judicial restraints has its merits also. The judge by defination must be impartial, and there is a danger that impartiality is being compromised. But then again, one can say that previously also our judiciary was not impartial, but pro government in power.

    As for conservatism, judges ultimately reflect the society at large. If majority of urban middle class has conservative leaning, so would the judges. The important thing is to ensure that judicial process is made as robust as possible, so that personal biases are suppressed.

    In USA, all supreme court judges belong to one of the organized religion (even the ones from democratic party). A few days ago, on Larry King Live, liberal Bill Maher was speaking, and he showed concern that none of the judges were atheist, or even agnostic. Although a large number of Americans classify themselves as agnostics, but majority is still identify themselves as part of a religion. The point is that even in USA not all sides can be represented on the judicial panel. What they have done is to ensure that the administrative process keeps religion out of the court room as much as possible. Still abortion and gay marriage issues are challenging to the current court.

    For Pakistan, the government, instead of focussing too much on what judges are doing, should improve its own performance and behavior, our people are quite forgiving when it comes to politicians, six months of good behavior and everything will be much better for the PPP government.

  2. Raza

    @Mnoor
    “As for conservatism, judges ultimately reflect the society at large. If majority of urban middle class has conservative leaning, so would the judges. The important thing is to ensure that judicial process is made as robust as possible, so that personal biases are suppressed.”

    I fully agree with your assessment. Judges reflect the conservatism of the society and not every orientation can be adequately represented in the panel.
    The option left is to at least ensure that personnel biases are suppressed and Judges are impartial