THERE is a debate in Pakistan about the constitutionality and desirability of the judgments and conduct of the Pakistani Supreme Court (SC). But there is no debate about the fact that the SC has emerged as one of the most powerful institutions in the country.
Having removed a prime minister, disqualified elected legislators, declared the Nov 3, 2007 coup unconstitutional, questioned military intelligence agencies as well as parliamentary and executive power and challenged powerful private entities and individuals, it seems that the only constant thing about the SC is that its power is constantly increasing.
But if the SC’s only power is that of delivering judgments then why is the present Supreme Court so powerful? In other words, the judiciary is dependent on the executive (represented by both the political and military elite), and legislative state organs for its finances, the implementation of judicial orders and its physical security.
It is even dependent on the political and military elites agreeing to respect its judicial independence and to not unconstitutionally remove judges. In short, the constitution itself cannot protect the SC unless the political and military elites agree to abide by the constitution.
Moreover, since the enactment of the constitution in 1973, the formal constitutional power of the Pakistani superior courts has actually decreased through constitutional amendments and the judges presently composing the SC are the same ones who took oath under the Musharraf regime.
Therefore, neither formal constitutional judicial power nor the composition of judges can explain the formidable clout of the present Supreme Court.
The lawyers/judicial movement of 2007-2009 can be identified as the catalyst for the tremendous judicial power of the present SC. But what exactly are the reasons behind it? We can identify seven:
(a) Judges as agents of change: An examination of the judgments, views and actions of the SC clearly shows that the court perceives itself as a catalyst for socio-economic and political change in Pakistan and is not simply serving a passive judicial function as just another organ of the state.
Its perception of itself as a reformer is based on three elements.
Firstly, the lawyers/judicial movement is perceived as a revolutionary moment in Pakistani history.
Secondly, the purpose of the repeated reference to/reliance on the ‘will of the people’ in SC judgments is to prove that this judicial reform role has a ‘popular’ basis.
Thirdly, Justice Jawwad S. Khawaja in a recent judgment on the Contempt of Court Act, 2012, has even gone to the extent to impliedly argue that this judicial reform role may be a part of the ‘natural’ ‘trajectory’ of history.
Therefore, as with revolutionaries and reformers, the power of the SC is also psychological — belief is power and the Supreme Court believes that it is powerful.
(b) From constitutional to popular legitimacy: The message from the unconstitutional removal of the chief justice on March 9th, 2007, and of the judges on Nov 3, 2007, was simple — mere constitutional legitimacy cannot protect judicial independence and integrity.
Therefore, the strategy of judicial activism is to take up issues which directly affect the ‘people’ and as a consequence, to acquire popular legitimacy. This popular judicial legitimacy contains the strategic threat that if the judiciary is threatened then it is the ‘people’ who will protect it through mass mobilisation as they did during the lawyers/judicial movement.
(c) Judicial panacea: In the anarchy and breakdown facing Pakistani state and society, the SC has tried to portray itself as a functioning state institution which can still resolve state and societal problems.
Moreover, it has proposed ‘judicial governance’ as an ideology to resolve state and societal problems.
The ideological power of laws and judgments should not be underestimated because it is based on the powerful modernist myth that complicated problems of societies can be resolved through legal rationality and judicial intervention. In short, ideas are power and the judicial solution is portrayed as the only reform game in town.
(d) The constitutional breakdown trap: The reason why the PPP-led government is not willing to take on the SC is because of the permanent danger of military intervention in the face of a constitutional deadlock.
Therefore, the threat of constitutional breakdown has forced the PPP government to accept the constantly increasing power of the present SC, in order to avoid a larger threat i.e. to civilian rule itself.
(e) Intrastate conflict: Comparative judicial analysis shows that judicial power increases in the presence of intrastate conflict between a weak government, military and the opposition because the judiciary emerges as the adjudicator of these intrastate conflicts in constitutional democracies.
In other words, a divided political and military elite in a constitutional democracy, leads to a powerful judicial elite.
(f) Charismatic leadership: In the perceived vacuum of leadership in Pakistan, the personality of the chief justice and of the Supreme Court as an institution has emerged as filling the role of the ‘charismatic leader’. The power of the ‘saviour syndrome’ (i.e. ‘charismatic leadership’ saving the ‘people’) should not be underestimated especially in the South Asian context.
(g) Fame through media: The 20th and the 21st centuries are a testimony to the power of fame through media. Fame is power and the Pakistani Supreme Court is also powerful because it is famous. To achieve fame, the SC has through both its judgments and its daily comments during court proceedings [i.e. verbal judgments], used the print and electronic media, to try to capture the imagination and support of the people of Pakistan.
Power is important but the quest for the accumulation of power does not necessarily lead to such power being exercised rightly and justly. Moreover, the greater the power, the greater the need for public justification and accountability.
Therefore, the key challenge is not to fear a powerful Supreme Court but to develop mechanisms to ensure the public accountability of judicial power.
The writer is a lawyer.