Judicial sovereigns

THREE judges of the Supreme Court issuing a short judicial order dated June 19, 2012 and consisting of only two pages has led to two dramatic consequences.

Firstly, the removal of prime minister Yousuf Raza Gilani, who enjoyed the support of an overwhelming majority in the National Assembly. Secondly, the acceptance of judicial defeat by the political elite leading to political change in the form of a new prime minister.

In short, unlike the unconstitutional coups of the military elite, the Supreme Court has emerged as an independent constitutional vehicle for political/government change in Pakistan on the basis of legal, and not political, grounds.

But let us think about this in more generic analytical terms. What is the nature of this Supreme Court which brings about a political/government change? What are the reasons behind the rise of such a Supreme Court? And what are consequences of such a Supreme Court?

From independence to activism to sovereignty: In the beginning, it was all about ‘judicial independence’. The period between March 9, 2007 (i.e. suspension of the chief justice) and Nov 3, 2007 (i.e. Musharraf’s second coup) is characterised as a struggle for judicial independence.

But after the restoration of all the judges in March 2009, judicial independence was no longer an issue but rather a presumption of the superior judiciary regarding itself. The battle moved on from judicial independence to judicial activism in the period between March 2009 to November 2011.

This period of judicial activism was characterised by rigorous judicial scrutiny of legislative and executive/government actions of the political elite and of human rights and other legal violations by private individuals/organisations and a check on the de facto power of the military elite.

But none of the decisions and actions of the Supreme Court was a direct challenge to the power base of the political elite. For example, even on the NRO issue, judicial restraint was exercised by the Supreme Court for over two years before contempt proceedings were finally initiated in January 2012.

However, December 2011 seems to have been a turning point with the ‘memo case’ at the Supreme Court. The judgments in the ‘memo/Haqqani case’, the ‘contempt case’ against the prime minister and the latest short order in the ‘disqualification case’ against the prime minister indicate a shift from judicial activism to judicial sovereignty.

This judicial sovereignty indicates the confidence of the Supreme Court to directly challenge the political elite by posing a judicial threat to its leadership and the threat to restructure the democratic system in the judiciary’s image. In short, the Supreme Court is exercising relatively absolute power like any other sovereign, being externally checked only by public opinion and by the countervailing power of the political and military elites.

Reasons for the rise of judicial sovereignty: Four main reasons can be identified. Firstly, apart from initially resisting the restoration of an independent judiciary till March 2009, the PPP political elite has not been able to put in place any institutional or non-institutional checks/ resistance on judicial independence or judicial activism. Therefore, the lack of systemic political resistance to judicial independence and judicial activism created the conditions for judicial sovereignty.

Secondly, conflict within political elites (PPP versus PML-N) and intra-state conflict (PPP versus the army), requiring judicial adjudication (e.g. contempt case, memo case), dramatically increased judicial power. In short, the judiciary exercises sovereignty because its political and military opponents are busy fighting among themselves.

Thirdly, there is always a rise in severe judicial dissent against the government in the last year of any government in a transitional democratic state. Judges give major political decisions against the ruling political elite because they know that the government is on its way out. In Pakistan, this ‘judicial dissent/defection’ in the last year has been expressed in the form of judicial sovereignty.

Fourthly, the perceived legitimacy of this judiciary is not based merely on constitutional legitimacy but also on popular or public legitimacy. The exercise of judicial sovereignty in removing prime minister Yousuf Raza Gilani was politico-constitutionally possible because of the perceived unpopularity of his government and the lack of popular resistance to such judicial removal.

Consequences of judicial sovereignty: Judges exercise tremendous power over the destiny of Pakistani citizens. Such judicial power is three-pronged. Firstly, the constitution controls our destiny and the judges control the constitution because they are the ultimate interpreters of the constitution.

Secondly, judges are the final decision-makers in disputes between political elites, intra-state institutions and private individuals. In short, unless set aside in heaven by God, the judgments of the superior courts determine our destiny because they ultimately decide our disputes.

Thirdly, this present judiciary has initiated a process of judicialisation of state and societal issues meaning that the constitution and law are being promoted as a supreme moral value and as a solution for all problems affecting Pakistan. Our political, social, cultural and economic problems have been legalised and judicialised.

But are there any checks on or accountability of this judicial sovereignty? The answer to this question is simple: very little. There are actually no institutional or constitutional mechanisms to check and hold the judiciary accountable for a completely wrong or absurd interpretation of the constitution or a completely wrong or absurd resolution of a legal dispute.

Moreover, since the appointment and removal of the judges is, in reality, in the hands of the judges themselves, serious questions arise whether any accountability about the conduct of judges is possible in such a system.

As Dr Arsalan Iftikhar’s case clearly indicates, short of initiating proceedings under Article 209 of the constitution for the removal of judges, there are no institutional, or constitutional, mechanisms for checking and addressing allegations of unethical or improper judicial conduct.

Judicial sovereignty is a judico-political reality, which will be difficult to reverse but judicial sovereignty without accountability is a constitutional anachronism, which cannot be accepted. Therefore, the task ahead is not to engage in either irrational optimism or pessimism about our superior judiciary but to begin the patient task of initiating judicial reforms for judicial accountability.

The writer is a lawyer.

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Comments (13) Closed

Hamid Abbasi
Jun 26, 2012 01:50pm
Fully agree with you.Poor me! I got lost in the spell of flowery language of the author.Yes,your net is too wide. Hamid Abbasi
Zubair Khan
Jun 26, 2012 12:29pm
To me the second reason sounds more logical which reads, conflict within political elites (PPP versus PML-N) and intra-state conflict (PPP versus the army), requiring judicial adjudication (e.g. contempt case, memo case), dramatically increased judicial power. In short, the judiciary exercises sovereignty because its political and military opponents are busy fighting among themselves" This reason likely to continue irrespective of the fact which political party governs the country. Reasons are deep rooted in the psyche of those who wear Khaki and not easy to reverse the situation in foreseeable future. As for concluding remarks are concerned, "Therefore, the task ahead is not to engage in either irrational optimism or pessimism about our superior judiciary but to begin the patient task of initiating judicial reforms for judicial accountability" It is a gigantic task easy to say on papers but extremely difficult to execute specially in current scenario where emotionalism and sentimentalism has engulfed the whole society. However if some one can start might facilitate some light at the end of the tunnel.
Tahir Younus
Jun 26, 2012 04:26pm
Judicial activism or sovereignty can only be curtailed by good governance and delivery on the basics. Mere academic discussions and wishful thinking will not do anything. Turkish Model is an example.
Jun 26, 2012 04:22pm
It is finally proved that Musharraf was right in what he did to these so-called judges.
Jun 26, 2012 11:55am
True point, but the Judiciary has shown that for the time being the case for judicial accountability is not compelling enough to lose sleep over it. The supreme court can review its own decisions via a larger bench and also the judiciary is constrained to follow precedents which in itself is a self correcting mechanism. Let the political classes get accustomed to powerful scrutiny accountability and be compelled to perform then and only then we should think about Judicial accountability.
Jun 26, 2012 03:11am
You are exactly right. If the prime minister is accountable to the point that he can be fired -- the judiciary must be accountable to a mechanism that can judge the judge. Judiciary must not be above the law either.
Jun 26, 2012 12:18pm
I believe that the supreme court exceeded its authority not by removing the PM but by insisting that the Swiss cases be re-opened. This is a clear encroachment on executive powers. However, once this step was taken, the disqualification of the prime minister for non-compliance was inevitable. After all, if a constitutional officer decides to act on the basis of his understanding of the law and not that of the Supreme Court, what hope is there for a lawful administration? What is the point of even having a Supreme Court? I am shocked that attorneys are shocked at the PM's disqualification but not at the events tat preceded it.
Said Arab
Jun 26, 2012 04:30am
An excellent article which points the system flaw of judges accountability.
Jun 26, 2012 04:54am
All these fancy words and the end result is an obviously partisan call for judicial wing clipping. Instead of looking at the present circumstances through his narrow party loyalty glasses, the author could have appreciated, nay celebrated the ability of the higher judiciary to both pass and enforce a judgement. In the long run an effective judiciary is required to entrench and enforce effective democratic traditions. He ought to be careful what he wishes for. We don't want to go to the bad old days where the military's ambitions are completely unchecked because of weak and squabbling political forces and an ineffective and compliant judiciary. Dr Arsalan Iftikhar’s case illustrates how the corruption mafia can infect almost anyone. Whilst severely embarrassing for the good judge, it cannot be used to condemn the entire judiciary as corrupt. Arsalan should be punished for his corruption but so should his admittedly hyper corrupt and corrupting accuser and all those whose bidding he does. Or am I casting the net too wide for the author's comfort ??
Jun 26, 2012 05:13am
The genetic fault with our race is dominance of passion over reason. By passion I mean religious ferveur, raising some leader to the status of demi God and lack of balanced view point. I remember Eitezaz Ahsan leading the long march for the restoration of democracy and holding forth " there are moments in the life of a nation when a journey that takes years to complete is completed in a split second and this is one such occasion" The same man says he would not present a case before CJ and here you are. Had people like Eitezaz taken a balanced and sober view of the situation during that movement we would not have come to this pass. Now the pendulum has swung full circle from military putsch to judicial putsch.
Jun 26, 2012 05:53am
I think the major reason for the hyper-activism of the judiciary, especially against the government, is a political one - the delay in reappointing the CJ. Since then the government has been on the run. If appointments of judges are done by the judges themselves, the checks and balances on the judiciary's functioning become week! The government will have no control! Does not bode well for the future!
Jun 26, 2012 08:30am
very nice and good article
Syed. Nasir Mehdi
Jun 26, 2012 07:41pm
In the absence of honest executive the only one to save Pakistan is an honest Judiciary. They are doing a marvelous job by uprooting the corrupts.