Judicial chemotherapy

06 Jul 2018

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PEOPLE are generally stunned — either positively surprised, or shocked — at the extraordinary exercise of powers by the Supreme Court on grounds of the enforcement of human rights under Article 184(3) of the Constitution. Therefore, what requires examination is: what is happening, and what are its causes and consequences.

Past reinvented with a difference: The trend of every issue under the sun being decided by the superior courts, or the judicialisation of social, cultural, economic and political matters, is a long-term one in Pakistani judicial history, and began in 1988. But the court of Iftikhar Chaudhry accelerated this judicialisation phenomenon in two radical ways. First, since 2007, there has been a qualitative increase in judicial independence and this has translated into the superior courts gaining greater confidence in deciding more complicated state and societal issues as well as questioning various elites in Pakistan.

Second, since 2007, there has also been an increase in human rights/ public interest litigation not only in the high court but also directly in the Supreme Court — both suo motu cases and direct constitutional petitions. The court of Saqib Nisar has resurrected these past trends of the Chaudhry court ie a powerful Supreme Court, expanding human rights litigation and more issues being directly decided by the apex court under Article 184(3) instead of the high courts. But this past has been reinvented by the current Supreme Court with certain differences.

The judicial vote is in competition with the people’s vote.

Firstly, there have been two groups in Pakistan’s recent judicial history that have not been held judicially accountable — the security establishment, especially the intelligence agencies, and the Sharif family. They were untouchables ie groups which no judiciary was able to touch. The taboo in both these cases was broken. The Chaudhry court was accused of being soft on the Sharifs but decided a number of key cases against the security establishment. On the other hand, while the court of Saqib Nisar has been accused of being soft on the security establishment it has decided a number of critical cases against the Sharifs. Saqib Nisar’s court took swift action against former SSP Rao Anwar, who is allegedly supported by intelligence agencies, and took up the missing persons case, which are signs that it is cautiously trying to hold the security establishment accountable, but the jury is still out on that.

Secondly, the process of judicially engineering democracy through the qualification/ disqualification mechanism was started by the Iftikhar Chaudhry court but has been accelerated and entrenched by the present court. Post-2017, the judicial experiment to create a puritanical democracy with angelically honest politicians has led to a constant and radical judicial review of democracy and political leadership. In other words, the judicial vote is in competition with the people’s vote.

Thirdly, the central focus of the Chaudhry court was on political cases especially corruption cases, whereas the main focus of the Saqib Nisar court is on social issues. In other words, the focus has moved from general public interest litigation to specifically social interest litigation with an emphasis on health, water and education.

Power, rage, revolution: Conspiracy theories about a judicial-military alliance or judicial fame, or the so-called misreading of Article 184(3), cannot explain the extraordinary power of the Supreme Court. Three historical and structural reasons can be identified. Firstly, Chief Justice Saqib Nisar inherited a Supreme Court whose power and reputation had been gravely damaged by controversies surrounding the Anwar Zaheer Jamali court. At that time, the court was at its lowest point in terms of power since 2007. Without public power, the court is just another toothless department of the state. The Supreme Court can acquire public power by taking up people-oriented and media-driven issues. The court of Saqib Nisar is perceived as having resorted to the politically engineering of democracy, social interest litigation and challenging the various elites, to restore the power of the Supreme Court — primarily by trying to convert the ‘Supreme Court of Pakistan’ into the ‘Supreme Court for the people of Pakistan’.

Secondly, watching the proceedings in the chief justice’s courtroom gives you the feeling that there is constant judicial rage against Pakistan’s inability to convert itself into a modern and developed country. This sentiment is expressed through controversial public comments and aggressive judicial activism. Ayub used military authoritarianism, Bhutto used political authoritarianism and Chief Justice Saqib Nisar is now seen to be using legal authoritarianism to try to reconstruct state and society. Constitutionalism and judicial activism appear to be a new form of Pakistani nationalism and the Supreme Court proceedings resemble a state of ‘government by the judiciary’.

Thirdly, judicial rage is combined with the belief that the solution to underdevelopment and lack of modernity is the rule of law. This has given rise to the ‘revolution through judicial means’ theory.

Hope, chaos, disappointment: The cancer of state collapse, the elite capture of public funds and institutions and the evil of grave human rights violations especially by the intelligence agencies, is so entrenched in Pakistan that neither good judicial intentions nor working 24/7 can rectify such structural problems. Judicial rage and activism can only act as judicial chemotherapy for this entrenched and ever-spreading cancer. Therefore, such application of judicial chemotherapy has three consequences. Firstly, it gives rise to hope regarding the solutions to long-standing problems. Secondly, once judicial interventions are made in countless areas, it give rise to chaos because of these unending interventions, lack of judicial expertise and solutions for many problems and denial of due process rights to parties under Article 184(3) proceedings. Thirdly, even though many will benefit from the tremendous relief granted by the Supreme Court, the overwhelming majority will not, leading to recurring disappointments.

Therefore, like chemotherapy, judicial activism is essential, has major negative consequences and in most cases, will provide relief but not solutions. But judicial chemotherapy will be welcomed, not because it solves most problems but like medical chemotherapy, it keeps hope alive.

The writer is a lawyer.

Published in Dawn, July 6th, 2018