Selective judicial activism is now seen as the dominant force against democratic representation in Pakistan, writes S Akbar Zaidi
NAWAZ Sharif is not giving up. The deposed former prime minister of Pakistan, who has been debarred (perhaps for life) from public office by the Supreme Court of Pakistan, is not just fighting back, but has been reinvigorated by the huge public response that he has been receiving in jalsas across the country, as he takes his case to the people with elections due in the next few months. While there is still some confusion whether Sharif has been barred for life or for a number of years, and the stipulated time period is under review by the Supreme Court, he continues to posit the superior judiciary against the people, particularly the voters who brought him to power in 2013. His main argument has been that his dismissal is an affront to the will of the people, and that the Supreme Court has delegitimised their democratic voice.
IT IS not only Sharif who has been removed from the prime minister’s office by the Supreme Court in recent years — in 2012 so was Yousuf Raza Gilani of the Pakistan Peoples Party, who had been elected following Benazir Bhutto’s assassination, when the PPP formed the government in 2008. Moreover, following Sharif’s ouster in July 2017 and his diatribe against the judiciary, in the last few days, one Senator of his party, the Pakistan Muslim League-Nawaz (PMLN), has also been disqualified for making statements against Supreme Court judges. And two ministers have been issued notices for contempt of court, and asked to present themselves at the Supreme Court to explain themselves, also for making statements against the Supreme Court judges. For the moment, selective judicial activism has replaced military interference and adventurism as the dominant force against democratic voice and representation on the political map of Pakistan.
With Pakistan dominated by the military for many decades, all conspiracy theories regarding changes in government, or the dismissal of Prime Ministers, naturally land on the military’s door. Hence, many retired generals and analysts stated, without offering any proof, that Sharif’s dismissal by the Supreme Court was on the behest of the military, rather than a decision made independently by the court. While the military may not have been unhappy with the decision, such speculation takes away all independent agency being exercised by a Supreme Court which has found a new life and mission over the last decade.
In the past when the military has rightly been seen as Pakistan’s main anti-democratic institution, it had always been the Supreme Court which provided constitutional cover to military regimes. Under a notion of the ‘Doctrine of Necessity’, the Supreme Court legitimised the three military takeovers — in 1958, 1977 and 1999. Each time, while the military regime differed as did its actions, the Court came to support such anti-democratic intervention, allowing ample space for military rule in Pakistan. For almost all of Pakistan’s history, the Supreme Court has been complicit in military rule in Pakistan. Some lawyers, who have analysed the role of the judiciary since 1947, have made the argument that this support has not been simply on account of military pressure, but because the judges of the superior court themselves, and independently, shared the same world view as the military and were happy to articulate their position when called upon.
THIS view changed when Pakistan’s last military general-president, Pervez Musharraf, trampled on the toes of the judiciary, dismissing the Chief Justice of Pakistan in 2007. Since then, following great popular support, the judiciary had acquired considerable respect for its independence and pro-democratic position and statements, declaring on numerous occasions that it would never again support or condone a military takeover. Whether this is simply bravado or a genuine sign of independence affirming a born-again judiciary has not, as yet, been put to the test, and we will not know unless something to the effect takes place. Yet, as the possibility of a military intervention — at least in the form of a direct military takeover — recedes, one does find the revived institution of the judiciary flexing its muscles demonstrating considerable confidence and much independence.
This confidence is also being manifest by a hyperactive judiciary taking up suo motu cases largely seen to be in the public interest. Recent interventions have been made on a number of rape cases, of those regarding the disappeared, and even in cases of extra-judicial killings. While some lawyers have criticised this recent activism by the Supreme Court on account of it undermining the overall legal process and procedures and its many associated institutions, and have made the valid argument that only a few high-profile cases are selectively chosen, the first port of call for anyone with a grievance of any kind is now the chief justice of Pakistan himself, who is asked to intervene directly. Such activism has made the judiciary immensely popular in the public mind.
In the past, it has always been the military which determined what is permissible as public discourse, always reacting to criticism against it, claiming that views against the actions of the military and criticism of it are some form of anti-nationalism, or anti-patriotic. The fact that the military has been publicly criticised — by scholars, social media participants and politicians — in recent years gives some indication of the relative denuding of power and hegemony of the military in Pakistan. The rise of the judiciary as an alternative, perhaps parallel, institution in terms of dominance needs to be seen in this light. Yet, when it comes to decisions which are clearly seen as ‘political’, there has been criticism, notably from Nawaz Sharif and members of his party, that the judiciary, like the military before it, has been partisan and selective in its treatment of democratic and political activism and points of view. Moreover, having gained such dominance, the claim is also made that it is now the judiciary which reacts with a heavy hand to criticism against its decisions, curtailing freedom of expression, suppressing voices which have differences of opinion. The people’s verdict in support of or against Nawaz Sharif is expected later this year, and if he were to win again, the Supreme Court’s decision is bound to come into conflict with the democratic choice of who the voters want as their prime minister.
The Musharraf test
PUBLIC discourse now pivots around this new-found ambition of the judiciary, although it has been often suggested that it is still a junior partner of the military, and doing the latter’s bidding. The one key case on which such allegations rest is General Musharraf’s treason trial. While Prime Ministers have been debarred and dismissed, and Ministers and Senators hauled up in front of the court, an undertrial military dictator is absconding with much ease and living in luxury abroad. Failing to address this key case makes one suggest that it seems that the judiciary has been more concerned with the contempt of court, rather than the contempt of the Constitution. Perhaps the key test of how independent the judiciary really is, whether its pro-democracy credentials are substantive and how much respect and trust it truly deserves, rests on how the Musharraf case is addressed.
TheHindu.com, February 9. S Akbar Zaidi is a political economist based in Karachi. He also teaches at Columbia University in New York and at the Institute of Business Administration in Karachi.
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