“Men make their own history, but not of their own free will; not under circumstances they themselves have chosen”. — Karl Marx
SINCE 2007, a dictator, two elected prime ministers and many members of parliament have been guillotined by an independent judiciary using legal and constitutional means. Three usual explanations are given for this phenomenon. Firstly, there is an alliance between an independent judiciary and the security establishment to control the politicians. Secondly, this is judicial imperialism through which the judiciary misinterprets the Constitution simply to usurp power itself. Thirdly, this is the glorious and continuous rise of the rule of law, which is the panacea for all Pakistan’s ills.
But what if the present judicial actors are not free actors but partial prisoners of circumstances?
Today’s expansive judicial power is rooted in our own judicial history, besides being a global phenomenon.
2007 — a paradoxical revolution: The earlier transitions to democracy, namely 1968-1971 and 1983-1988 were the result of political struggles dominated by politicians using political ideology and mass mobilisation, with the judiciary having an insignificant role in such a transition. In fact, in 1969 and 1983, it was in collusion with the military. But 2007 was radically different because in order to get rid of Gen Musharraf, the politicians used the lawyers/judicial movement to make the transition to democracy. This had two consequences.
Firstly, the leadership of the democratic transition was handed over to the judiciary. The democratic battles against a dictator were not fought primarily through mass political mobilisation but through the process of law with reliance on judicial adjudication. Moreover, between 2007 and 2018, most political battles between politicians have been fought in court and not in the arena of political ideology, political performance and mass mobilisation. In short, it is politicians themselves who created this judicial empire by their existential dependence on it.
Secondly, the ideology which defeated Gen Musharraf was not socialism or some other political ideology concerning the people’s welfare but rather constitutionalism and human rights as defined by the judiciary. The gap left by the poverty of ideology on the part of the political elite was filled by a triumphant judiciary’s ideology of constitutionalism. Therefore, the success of the 2007 democratic transition is also part tragedy for the political elites because the leadership and ideology of this democratic transition has been handed over to the judiciary.
Judicial empire — historical and global: This expansive judicial power is rooted in our own judicial history and is also an established global phenomenon. Firstly, pre-1972, there was a colonial-minded but independent judiciary as it believed not in the rule of law but rather rule by law. Due to this colonial mindset, neither the 1958 nor the 1969 military takeover was judicially challenged as rule by law was always possible under military or colonial regimes. After the political enactment of Pakistan’s first-ever democratic Constitution in 1973, the slow trend of judicial dissent also began against military rule. In 1981, 2000 and 2007, high court and Supreme Court judges unprecedentedly defied military rule by refusing to take the oath of allegiance to martial law. This judicial dissent trend finally led to the shortest martial law in Pakistan’s history in November 2007, lasting less than two months. The present expansive judicial power is also rooted in this history of dissent. Moreover, the present fascination of the high courts and the Supreme Court with constitutional jurisdiction under Article 199 and 184(3) of the Constitution has its roots in the period 1988-90 ie the time of the first suo motu. Since 1988, there has been a steady and continuous increase in judicial adjudication of all kinds of political, economic, social and cultural issues. Thus, the present radical expansion of judicialisation of state and societal issues is deeply rooted in Pakistan’s judicial history since 1988.
Secondly, this trend of ever-accelerating reliance on judicial means for adjudicating core moral issues, public policy questions and political controversies is a global phenomenon. Whether it is South Asian countries like India and Bangladesh, or Latin America countries like Brazil and Costa Rica, or Southeast Asian countries like Korea and the Philippines, or African countries like South Africa or the invention of judicial activism by the American courts, the judicialisation of politics and governance by the judiciary is not a typically Pakistani phenomenon.
Security establishment under constitutional democracy: The democratic and liberal dream was simple: the Constitution and elections would roll back the powerful Pakistani security establishment. But to think that a huge standing army with an existential stake in the budget, a massive intelligence network, a nuclear option under its control, with a vested interest in conflicts in Afghanistan and India, and with huge stakes in the economic and social sphere, could be controlled by the Constitution and elections is nothing but a fantastical delusion.
Once the security establishment realised that it could no longer impose direct military rule because of local resistance and changing global realities, it followed the old advice of all ruling elites that ‘everything needs to change, so everything can stay the same’.
The security establishment has decided not to overthrow constitutional democracy but to reinvent and re-establish itself under it. Two aspects of this reinvention can be elaborated. Firstly, it seems to have ‘forcefully’ convinced both the political elites and judicial elites that for the sake of continuance of democracy and constitutionalism, a strategic silence must be maintained on security-related issues eg silence on alleged human rights violations in operations in Balochistan and on terror, establishment of military courts, and the exemption of military from financial accountability.
The second aspect is the use of perfectly legitimate constitutional means ie legal accountability through the courts, to achieve unconstitutional ends ie military domination. The Memogate and the Panama cases are classic examples of this as both cases involved legitimate legal accountability through legitimate constitutional means but led, unintentionally to domination by the security establishment.
Where constitutionalism weakens civilian rule, where democratic elites perceive an independent judiciary as an enemy and where a powerful security establishment has exempted itself both from democratic and constitutional control, surely Pakistan’s path to constitutional and democratic modernisation will be treacherous and complicated.
The writer is a lawyer.
Published in Dawn, March 2nd, 2018