Judicial hyperactivism is threatening democracy in Pakistan

Pakistan is known for its weak political institutions, powerful army, several military coups and the infamous Article 58(2)-(B) that was used to send elected prime ministers to home or jail.

But this time around we are seeing a slightly different technique when the three member bench of the Supreme Court declared Yousuf Raza Gilani disqualified from holding a seat in the parliament from the date of his conviction on April 26 by a seven-member bench for contempt of court. A prime minister, who enjoyed confidence of the Parliament, who even before taking the oath of office, ordered release of the judges sacked and detained by former military ruler Gen Pervez Musharraf and later reinstated all the deposed judges on 16th March 2009 through an executive order. Many renowned experts as well as common person termed the ouster of elected PM similar to a judicial coup.

The Twitterities are using the hashtag #JudicialCoup to explain a new (invented)mechanism to oust an elected government.

Jin pattharoN ko Ata ki thi hum nay dharkanay——Jab zubaN mili to hum hi par baras paray

The judges’ restoration movement, was developed as a resistance to General Pervaz Mussharaf’s dictatorship, in November 2007, when he moved against the judiciary and when people in general had become uncomfortable under a military ruler.

The judges’ restoration movement, has been wrongly termed by many as a new beginning for Pakistan, as it’s not only failed to create and develop space for civilian supremacy, but also emerged a main hurdle in democratic evolution. And, today, we are more concerned than ever about the political instability. International media and observers place Pakistan in the category of countries, where parliament is continuously under sieges.

Pakistan’s judiciary has a very controversial history, which had never opposed, even the unconstitutional actions of the military dictators. The frequent imposition of martial laws, abrogation and suspension of constitutions were acts of treason under the law but were frequently validated by our apex courts.

In Maulvi Tamizuddin Khan versus the Federation of Pakistan, Justice Munir declared that the Assembly was not a sovereign body. He gave the ruling that the Constitutional Assembly had “lived in a fool’s paradise if it was ever seized with the notion that it was the sovereign body of the state”. The wording may be slightly different but the mindset remain the same, when the present Chief Justice said that the concept of parliament’s sovereignty was ages old so it was not so it was not applicable now. Historians feel that Justice Munir destroyed Pakistan’s constitutional basis when he denied the existence of Assembly’s sovereignty, and further harmed it by not indicating where sovereignty resided. It is quite obvious that historians will also judge the serious consequences of the present role of the judiciary for parliamentary democracy in Pakistan.

The observation by Justice Munir in Dosso versus the Federation of Pakistan, that a successful coup is a legal method of changing a constitution, sets the basis for the Commander-in-Chief of Pakistan Army, General Ayub Khan, to takeover the government from Iskandar Mirza. Ironically, the military takeover by General Ayub Khan on October 27, 1958, took place one day after the decision of the court was announced. By November 10, 1977, a nine-member bench of the Supreme Court of Pakistan, headed by Chief Justice Sheikh Anwarul Haq, unanimously validated the imposition of martial law under the ‘doctrine of necessity’. The judgment provided cover to the unconstitutional act of General Ziaul Haq and even gave him authority to make changes in the constitution. And in the Zafar Ali Shah case, the Supreme Court had granted three years to General Musharraf to hold elections and amend the Constitution and, in turn, General Musharraf gave three-year extension in service to the then incumbent judges.

There are lots of sane legal constitutional voices not only in Pakistan, but internationally suggesting that the SC should follow the philosophy of judicial restraint. Moreover, courts try to confine themselves to reasonable interpretations of laws, and not try to encroach and undermine parliament’s domain. A former judge of the Supreme Court of India and chairman of the Press Council of India, Mr. Markandey Katju writes, , In view of the turmoil currently prevailing in Pakistan, a clear elaborate enunciation of the philosophy of judicial restraint is called for.

Justice Katju writes:

In the garb of interpretation, the Court must not seek an unnecessary confrontation with the legislature, particularly since the legislature consists of representatives democratically elected by the people.

The philosophy behind the doctrine of judicial restraint is that there is broad separation of powers under the Constitution and the three organs of the State, the legislature, the executive, and the judiciary must respect each other and must not ordinarily encroach into each other’s domain, otherwise the system cannot function properly. Also, the judiciary must realise that the legislature is a democratically-elected body which expresses the will of the people (however imperfectly) and in a democracy this will is not to be lightly frustrated or thwarted.

Appropriate to mention here is also the fact that all the prominent leaders, who stood side by side demanding the restoration of the deposed judiciary, right now, not supporting the judiciary’s position towards elected representative institutes.

Asma Jahangir, a renowned human rights activist and who was also a leading leader of the movement for the restoration of Chief Justice Iftikhar Muhammad Chaudhry, recently writes in her piece, ‘A law rarely applied’ published in DAWN:

In modern jurisprudence, even where the law for scandalisation and ridiculing the judiciary exists it is rarely applied. The restored judiciary has, unfortunately, used it without mercy. Judges were issued notices of contempt, one prime minister has been sent packing and numerous officials are daily threatened with its application.

Generally, a judiciary should be respected and revered as a pivotal institution for the promotion of the rule of law and democratic values rather than be feared for its power.

It is rightly argued that contempt laws help to ensure that the authority of the courts is not undermined. It prevents public confidence in the administration of justice from being undermined. It is also argued that the contempt law shields judges who otherwise cannot answer back to unfair and lethal criticism. However, the criminalisation of scandalising the judiciary suppresses free speech and does not raise the image of the judiciary. And the resort to penalising people for contempt of court tarnishes the graceful image of any judiciary.

Ms Jahangir concludes:

The law of contempt deserves to be modernised but more importantly, the judiciary must itself use the law very exceptionally and interpret it liberally. After all, the basic cry of the lawyers’ movement was to restore the rule of law and to benefit from a judiciary that is liberal and strong — and not powerful and self-indulgent.

It is very unfortunate that, though the people struggled and nature has provided the judiciary in Pakistan an opportunity to make up for the past mistakes and grow as an independent, pro democracy, and unbiased institution that upholds the rule of law and supremacy of the constitution. But it once again failed to come up to the nation’s expectation. So the present role of the judiciary is very disappointing for us. In fact, it’s threatening democracy.



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