NORMALLY judges disavow activism. John G. Roberts, the present chief justice of the United States, declared a few months ago that judges were like umpires; they did not make the rules, they only applied them. In actual practice some of them do occasionally become activists.

The higher judiciary in Pakistan has intervened in the government’s functioning from time to time, and some observers have applauded these interventions. An editorial in this newspaper (February 25, 2004) urged the courts to be more “proactive” and see to it “that public policies are basically oriented towards promoting and safeguarding the interests of the common citizen and not those of the privileged sections of society.” The writer of a letter to the editor (January 11, 2006) wants the Supreme Court to do something about the traffic jams that prevent critically ill persons from reaching the hospital in time. One may wonder why he and the editor stopped short of asking the Supreme Court to take over the country.

Judges in Pakistan may have at times struck down a law on the ground that it was repugnant to the Constitution. More often they have voided specific actions of government agents, because these violated the Constitution or a relevant law. On other occasions they have validated not merely violations but abrogation and suspension of the Constitution.

In 1954, a senile governor-general dismissed the constituent assembly. It is likely that he held democratic politics in contempt. The federal court upheld his action for reasons of “state necessity,” but it is possible that in addition it shared his low regard for democratic processes.

In 1958, 1977 and 1999, the military seized the government, abrogated the Constitution on the first occasion and put it in abeyance on the next two. The president of Pakistan dismissed the National Assembly, and with it the prime minister, in 1988, 1990, 1993, and 1996. The Supreme Court validated all of these actions except the Assembly’s dismissal in 1993. It validated the army’s coup by invoking the “doctrine of necessity.” This doctrine, it should be noted, is not a part of the law; it is a rationale for evading or defeating the law. Resort to it is, therefore, clearly an exercise in judicial activism.

The Supreme Court exists and functions under the authority of the Constitution. After a general has abrogated or suspended the Constitution, it exists and functions at his sufferance or under his mandate. Ordinary commonsense will tell us that in this circumstance the court is in no position to entertain challenges to the general’s legitimacy. In none of the afore-mentioned cases did he ask the judges to validate his action. A third party posed the challenge. They could have declined to hear it for lack of jurisdiction. But they heard the case, and put their seal of approval upon the coup. Then in a dramatic display of activism, they went out of their way to confer upon the general the authority to amend the Constitution even though he had never requested it.

They did not call upon the general’s spokesman to spell out the nature and degree of the necessity that had compelled him to overthrow a duly constituted government. It was not good enough for him to have alleged that this government had been corrupt and incompetent. He should have been asked to establish that had it not been overthrown some great harm would have befallen the state of Pakistan. The court chose not to raise these issues.

The president dismissed the National Assembly to get rid of an unwanted prime minister. His reasons each time were essentially the same: the government was corrupt and incompetent. But why dismiss the Assembly? The president had the authority to dissolve it in situations where the government could no longer be carried on according to the Constitution. The court upheld the president in two cases and voided his action in one. But in the former two cases it did not ask his spokesman to show in what way it had become impossible to carry on the government according to the Constitution. This too was judicial activism, albeit, of an unusual kind.

A few years ago, acting suo motu to safeguard the public interest, the Indian supreme court appointed a deadline by which all public transport vehicles in Delhi must convert to CNG (gas). In Pakistan judicial interventions of a different order have of late been taking place. Three young women in Mianwali appealed to the president and the Supreme Court (through the media) to protect them from persons threatening to hurt them because they would not marry the men to whom they had been promised by their parents when they were children or babies. The chief justice of Pakistan read about this affair in the newspapers and directed the district police officer to protect the girls.

A woman alleged that she had been molested by two police officers, and raped by one of them, in Faisalabad. The Supreme Court took cognizance of the matter and virtually took charge. It ordered an inquiry and wanted to know the findings. It directed the police, sequentially, to register a criminal case against the accused officers, arrest them and place them in jail. It found faults with the inquiry report, told the investigators to go back and look further, ordered another group of higher-ranking officers to conduct their own inquiry. Another young woman, a Kashmiri earthquake victim, alleged that a physician in the hospital to which she had been admitted had raped her, and the court ordered an inquiry. (Apparently, she has since withdrawn her accusation.)

In some of such cases the court has intervened, suo motu, because a law has allegedly been violated or is about to be violated. Articles 184, 187, and 199 of the Constitution appear to authorize the court to act in cases of “public importance” involving fundamental rights for the purpose of securing complete justice. Reading these articles, I get the impression that the court is to act in matters pending before it or upon the application of an aggrieved party. Article 199 begins with the caution that the authority conferred upon it is to be exercised if the court is satisfied that “no other adequate remedy is provided by law.” In other words, it is asked to act with circumspection.

But even if we assume that a newspaper report of an actual or threatened violation of some citizen’s fundamental rights is a good enough reason for the court to intervene, the question remains as to where it will draw the line. One may assume that several hundred thousand husbands in Pakistan beat and otherwise abuse their wives almost every evening and thus violate one or more of their fundamental rights.

What if the wives start reporting their plight to newspapers? Will the court then move to provide protection and relief to all of them and, if so, who will then “mind the store”: clear the enormous backlog of pending cases stacked in its offices? Nor is it clear that the judges are any more qualified, than a host of others in the public domain (executive and legislative branches among others) to decide that a particular situation constitutes “a matter of public importance.”

It may be useful to recall that in certain matters, which were indisputably “matters of national importance,” the court remained quiescent. For instance, it had validated Ziaul Haq’s coup on the understanding, among others, that he would hold elections within 90 days of his seizure of the government. He did no such thing, but the court never even reminded him of his undertaking. At the present time, General Musharraf is exercising powers that the Constitution and the laws do not allow him, but the court is doing nothing to restrain him.

Proponents of judicial activism may argue that if a grievous wrong is being perpetrated, which the more directly concerned officials are not moving to stop, it is good that the judiciary acts to fill the void and right the wrong. Let us then be grateful for its activism. This line of reasoning issues from the same frame of mind that leads many of our notables, including opposition politicians, to call upon the army periodically to overthrow an elected government because it does not stop a variety of wrongs from being done.

It is, in the first instance, a function of the executive to protect citizens from rapists, wife-beaters, and other violators of human rights. As Michael Howard, a former British home secretary, wrote recently (December 25, 2005), governmental functions have been separated since the Glorious Revolution (1688): parliament has made the law, the judiciary has interpreted it. The task at hand then is to enliven each organ of the government to perform its function effectively, not to acquiesce in the assumption of that function by another organ.

One may argue also that a Constitution should be a “living” guide to action, that if it was made a long time ago, and if the society’s problems and ways of thinking have changed since then, it may be remade through judicial re-interpretation so that it may continue to be of use in the changed circumstances. I do not accept this argument. In a democracy the making of a Constitution and laws is a prerogative of the people to be exercised by their representatives in a legislature. If and when judges re-write the Constitution or make laws in the process of interpreting them, they usurp the legislative function.

If the Constitution has become outdated in some respects, let it be amended in the prescribed manner. If that manner is too cumbersome, simplify it. One might even say with Thomas Jefferson that the Constitution should be revised every 25 years or so to enable the new generations that have come of age to subscribe to it. I do not go quite as far, but I would prefer his proposal to the prospect of judges assuming the role of legislators and thus subverting the system of governance that the founders had put in place.

The author is professor emeritus of political science at the University of Massachusetts at Amherst, US.

Email: anwarsyed@cox.net

THIS year’s sermon at Mount Arafat bemoans the lack of unity in the ranks of the Muslims as it does every year. The central, and refreshing, theme of Grand Mufti Sheikh Abdul Aziz’s sermon last Monday marking the culmination of the Haj rituals, however, was a wholesale condemnation, without exception or qualification, not just of terrorism but also of fanaticism and extremism that lead up to it.

Now, if there is an authentic occasion and a voice that the Muslims the world over should pay heed to, this is the one. The killing of the unwary and unconcerned people to avenge the wrong done by their community or government, therefore, can never be justified in the name of religion. Nor can be the killing of any person for his belief howsoever heretical it may appear to the majority or to the individual fanatics.

Linking terror with Islam has threatened the life and freedom of its adherents in their own societies and exposes them to humiliating restrictions when they emigrate to seek safety and better economic prospects in the West. Islam is thus under siege worldwide as a doctrine as well as a culture.

France has decided to bar the admission of Muslim girls in its public schools if they insist on covering their heads. The Muslim immigrants in Germany seeking citizenship are now required to answer such questions as whether the bombers of Madrid and London trains, in their judgment, are terrorists or freedom fighters. And the parents are asked to state as to how would they react if their children were to take homosexual partners or their daughters decide to marry Christian Germans. Terrorism in the name of jihad or punishing heresy, thus, has made life insecure for Muslims in their own regimented societies and compromises their moral values when they seek protection in the permissive West.

Authoritarian rule, combined with abuse of human rights, has driven the Muslim people, stricken by poverty and denied justice, to rally round the cause of the terrorists rather than identify themselves with the objectives of their states. Only a democratic government which cares for the people and is also accountable to them can reverse this situation. The people and the state of Pakistan possess the potential to take up this challenge in the light of their democratic tradition and Islamic teachings.

The Holy Quran says (surah Alnisa, verse 58): “Allah commands you to entrust authority in the hands of those who are best fitted to discharge it”. Sovereignty in this context clearly vests in people. They, in turn, are commanded to entrust it to those who are able to shoulder the responsibilities attached to it. The verse further enjoins that “when you are called upon to judge between, or exercise authority over the people, you must do so equitably and with justice”.

The obligation of the people to choose their representatives wisely, and the duty of their chosen representatives to exercise authority equitably is the very essence of good governance that has eluded the Muslim societies.

The structure and duties of a Muslim state are no different from that of a modern democratic state but the accountability in a Muslim state is more extensive. The Holy Prophet once said: “Everyone of you is a steward and everyone of you is accountable for that which is committed to his care”. Thus, a head of state is accountable for all of his people, every man is answerable for his family, every woman for her children and every public servant for the property that is placed in his charge.

Among the duties laid down for the Muslim state is to provide minimum necessities of life for all of its citizens. Worth recalling in this context is an instance of accountability pertaining to Hazrat Umar. In one of his nightly rounds the second caliph discovered that a woman and her children living on the outskirts of Madina had gone hungry for two days. He collected flour, butter, meat, dates and carried the sackful on his own back to the starving family. He declined the offer of his servant to carry the sack for him for no one else would be there to carry his burden on the Day of Judgment.

The starving woman blessed him and exclaimed he was far more fit to be Khalifa than Umar who knew not how the people fared in his realm. “Umar is not perhaps that bad”, the carrier of the sack murmured gently and walked away. This episode underlines an integral feature of Islamic governance that the head of the state is ultimately answerable and accountable to God.

Surely, if the Muslim states enable their people to choose their representatives fairly and those chosen are made accountable and the fundamental rights are guaranteed without discrimination of race and religion, people would rally round their governments rather than support the terrorists.

The tragedy of Pakistan is that its successive governments, instead of relying on the goodwill of people and being answerable to them, have chosen to nurture extremists to sustain them in power. With the passage of time and largesse of the state, the extremists have turned killers at home and also drawn into the world web of terrorism. Pakistan thus has became a breeding ground of terrorism and also its worst victim.

Now that the time is opportune to fight the religious extremists, the government, instead, has opted to fight the secular sardars and peasants. It is hard to guess what is in the mind of the president but more he talks of consensus sharper become the divisions. The policies he is pursuing and the people he is patronizing both have to change if the country is to stay on the constitutional course. The question no longer is whether to change but how fast and complete is the change.