HE third party intervention, reports say, has bailed out the government and helped de-escalate the political tension precipitated by the ruling party’s continuing reluctance to implement the Supreme Court’s verdict in the National Reconciliation Ordinance (NRO) case. Prior to that, political pundits were predicting imminent change in the government by means constitutional or extra-constitutional. However, at best this seems to be a temporary respite and political temperature may shoot up again.

One fundamental cause of this situation is certain misconceptions regarding democracy and the role and powers of the key institutions.

A major misconception prevalent in the polity is that democracy is an end in itself and that once a civilian government is elected by the people the political system has reached its zenith. Hence, the oft-repeated statement that the worst form of democracy is better than the best form of despotism. Those who are fond of making such statements on their part do not hesitate to strike a deal with the forces of authoritarianism whenever they find it to their advantage.

Doubtlessly we are living in an era in which democracy is universally regarded as the best form of government. Far from being an end in itself, it is a means towards some end. Though a democratically elected government is a legitimate government, its ultimate test lies in how effectively it promotes public good, which consists in freedom and good governance. The major problem for a democratic government then anywhere anytime is to combine freedom with good governance. Without the former, democracy relapses into despotism, without the latter it degenerates into mobcracy.

The present government has given the people a lot of freedom but has failed to give good governance. The rule of law is conspicuous by its absence, the credibility of the rulers is close to naught and the management of public affairs, particularly the economy, is far from being satisfactory. Worse, calls on the rulers to mend their ways and to bring greater transparency and responsibility to their affairs are dismissed as conspiracies against democracy, meaning their government.

Yes, the current political dispensation is the product of the popular mandate and on that count deserves our respect. Having said this, elections are the beginning of democracy, not the end of it. The popular mandate has to be accepted no matter what but having a popular mandate does not mean those at the helm are entitled to govern the way they want.

Like their predecessors, those ruling us today think that the best way to cling on to power is to enlist and maintain the support of the top brass of the armed forces. During the recent tug of war between the executive and the judiciary the ruling party felt confident that it did not face any threat as long as the military supported it. The footage of the army chief meeting the president and the prime minister to reassure — if we go by the official account — that the army would not resort to any unconstitutional step is a sad commentary on the fragile state of democracy in Pakistan. A few months earlier the same army chief was given a three-year extension after which the prime minister had remarked that since the tenure of all key players — the president, the prime minister, the chief justice of Pakistan and army chief — was secure until 2013, his government had nothing to fear.

Given the pre-eminent position of the armed forces in Pakistan’s political system, no government can afford to lose their support. Yet the ultimate authority of a civilian set-up must rest on a moral basis. If the government loses the moral authority, its fate is sealed. It may continue in office but is reduced to a puppet whose strings are pulled from the outside. In Pakistan on most occasions the dismissal of a popularly elected government did not evoke popular protest, mainly because long before they were shown the door they had lost their moral authority to govern.

A third misconception is that in Pakistan parliament is sovereign and therefore any checks on its powers are unconstitutional and unwarranted. A related view is that the political system rests on the principle of the trichotomy of powers providing that the legislature, the executive and the judiciary have their powers and functions defined in the constitution and it will amount to constitutional impropriety if any organ oversteps its jurisdiction and interferes in the functions of another. It is averred that the judicial activism by the apex court is undermining the authority of parliament and the executive and thus weakening democracy. At a time when democracy is struggling to take root and the government is grappling with the grave menace of terrorism, the argument goes, judicial activism is making the writ of the executive weaker.

No doubt, the constitution of establishes the principle of the trichotomy of powers, it does not provide for complete separation among the three organs. For instance, parliament is empowered to fix the number of judges of the Supreme Court and under the 18th amendment both parliament and the executive have a role to play in the appointment of the members of the superior judiciary. On their part, the courts can determine the validity of laws passed by parliament as well as the acts of the executive.

Article 175 (2) provides that no court shall have any jurisdiction except conferred on it by the constitution or any ordinary law. However, in case of a dispute regarding the scope and limits of the jurisdiction, the same is to be settled by the judiciary, and ultimately by the Supreme Court, as this involves interpretation of law and the constitution. But it does not mean that the judiciary’s power to interpret the constitution is untrammelled. Rather it is also limited by the constitution. It was held by the Supreme Court in State versus Ziaur Rahman and others (PLD 1973 SC 49) that: “In the case of a Government set up under a written Constitution, the functions of the State are distributed among the various State functionaries and their respective powers defined by the Constitution…. It cannot, therefore, be said that a Legislature, under a written Constitution possesses the same powers of ‘omnipotence’ as the British Parliament. Its powers have necessarily to be derived from, and to be circumscribed within the four corners of the written Constitution.”

Finally, the present members of the superior judiciary stand apart from their predecessors by virtue of their robust judicial activism. While there is a drawn-out debate on the legal and political merits and demerits of the judicial activism, the people by and large are seeking judicial intervention as the two organs are not minding their job. Even recently the prime minister commenting on the possible return of former president Pervez Musharraf remarked that the latter would have to face the chief justice of Pakistan in case he returned to the country.

Notwithstanding all the respect and appreciation that the judicial activism deserves, it is no substitute for political activism.

An independent and strong judiciary is a sine qua non for a strong democratic order and judicial activism is important for keeping the executive from overstepping its authority and settlement of public disputes. However, in no society, judicial activism has been the agent of political or economic transformation. It is always the political process, slow and faulty though it may be, which has effected such transformation. Hence, one should be mindful of the fact that it is political activism and not judicial activism that holds the key to a positive and meaningful change in Pakistan.

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