Ever since the courts disqualified Nawaz Sharif from the parliament, there has been debate on whether we are witnessing an attack on democracy.
To start with … No, there is no attack on democracy and we are not headed for a technocratic government yet.
But yes, the courts in Pakistan have engaged in judicial activism.
And yes, the decision to bar Nawaz from heading the Pakistan Muslim League-Nawaz (PML-N) does create serious issues for the PML-N.
The original Panamagate verdict on Nawaz effectively prepared ground for the latest disqualification. The legality of the new verdict rests on the decision that was given on the iqama case as part of Panamagate.
At this stage, even Imran Khan agrees that the iqama verdict was weak and felt as if the Joint Investigation Team had made up its mind in advance to convict Nawaz and came up with the weakest reason.
Because the reasoning was so weak, the verdict never inflicted the political damage on Nawaz and the PML-N that many expected.
The new verdict does not really hamper the narrative that Nawaz had since built and the PML-N is now reliant on either.
However, he being barred from heading the party does create problems for the PML-N going forward with regards to leadership and succession.
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The basic issue is that Nawaz does not trust anyone apart from his wife, his daughter and himself when it comes to running the party.
It is hard for people to comprehend how possessive he is of the party having gone through the trauma of 1999 and how the party was dismantled in 2000- 02. Those experiences have stayed with Nawaz and have made him very reluctant to trust anyone else.
So, when the courts ban him from being the party president, the only other person he can realistically choose is Kulsoom Bibi. Why not Shehbaz Sharif? Because mian sahab does not trust his younger brother.
He has still not thrown his full support behind Shehbaz for the prime-ministership. The chief minister wants to move to the centre and needs his brother's support to be successful there.
Shehbaz has also been trying to become a standalone political figure with recent political rallies in Punjab, which were very impressive in numbers but utterly disappointing in how the crowd reacted to Shehbaz’s words.
Similarly, the rally planned in Lodhran by Hamza Sharif in which Shehbaz was supposed to put on a show and claim credit for the by-election win was preempted by Nawaz as he opted for a sneaky jalsa of his own so that he could claim credit instead.
The issue is that Shehbaz does not have the charisma that Nawaz has and neither is he a politician. He is an administrator who has very narrow goals. Mian sahab just does not trust him to lead the party because he fears that the party would disintegrate as a result.
Shehbaz has barely met his Provincial Assembly members in the past 10 years. He rules through a royal court made up of bureaucrats (some of whom are now being indicted in corruption cases).
As much as Shehbaz thinks he can handle the affairs at the federal level, he is on for a rude awakening. The senior politicians listen to his brother. Shehbaz cannot ignore them and work through bureaucrats alone. And most importantly, his brother will be practically keeping 15 different checks on him from all sides.
In such circumstances, if Nawaz was to give up the control of party presidency, it would be akin to letting Shehbaz have a free reign. Effectively, it would be PML and not PML-N.
Hence, mian sahab would rather hand the leadership to his wife Kulsoom Bibi, even though she is still recovering from battling cancer.
But the important thing to understand here is how the PML-N has come out as victim while being in government. The court verdicts have helped the party build a narrative. How is this narrative built?
The narrative is based on the courts being portrayed as the effective government and the talk of supremacy of the judiciary on a regular basis helps fuel the idea that somehow the courts are the ones running the country while the parliament, where the PML-N has majority, fights to survive.
This is a straightforward premise to work with and the apparent judicial activism has helped feed the notion that it is the courts that are in power instead of the party that holds majority in the National Assembly.
Whatever the courts and honourable judges might think or believe, this has helped the PML-N.
But what led to judicial activism? The judiciary in Pakistan became quite independent following Iftikhar Chaudhry's reinstatement, declaring Pervez Musharraf's emergency unlawful, and finally the country transitioning into democracy.
As the courts became independent, the chief justice’s personality determined whether the courts occasionally took on activism or stuck to the orthodox operations of the court.
During Justice (R) Iftikhar Chaudhry’s time, the judiciary chose to be activist by taking suo moto notices of issues around public interest, and building on their legitimacy from there to take on high profile political cases, such as the one that forced Yousaf Raza Gillani out of prime minister’s office.
The next four chief justices focused on the conventional functions of the courts and operated within the definition of what a Supreme Court’s traditional role is.
However, when Justice Saqib Nisar took over, the Supreme Court began taking up a lot more suo motu cases, and apparently also expanded its operational jurisdiction.
The point is that the judiciary being activist is not a bad thing. It only becomes troublesome if it tries to take over the operational jurisdiction of other institutions. When that becomes the case, the judiciary technically starts hurting democracy. But we are far from that at this point in time.
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Lastly, it is pertinent to understand where we are headed. We are going into an election year where the country’s largest political party perceives that its biggest electoral foe is not another political party but the judges at the Supreme Court of Pakistan.
This allows the PML-N to build a narrative that hides its own internal issues. The impending shift within the party will take centre stage only after the elections.
Unlike the Pakistan Tehreek-e-Insaf (PTI), the issues at PML-N are not at the operational or ground level — they are at the very top. It is much easier to hide them from full public view.
Unless state institutions stick to doing their conventional jobs and allow others to do their's, there will remain a very real chance for an institutional show down.
As for judicial independence, it is a requirement for democracy, but judicial activism can potentially be counterproductive in some cases.
An institutional showdown involving the courts, if it ever comes down to that, could damage not only the sanctity of our democracy but also that of the judiciary.