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.