WHAT was the impact of Chief Justice Saqib Nisar’s tenure on the fragility of Pakistan’s democracy? Justice Saqib Nisar challenged one of the foundational principles of democratic constitutional theory, according to which the judiciary’s role in executive and legislative affairs is circumscribed. Under the leadership of a new chief justice, the Supreme Court should decide whether Justice Nisar’s brand of judicial activism should be maintained or abandoned.
The SC’s authority to review legislative and executive action to assess whether it is consistent with the Constitution is well established, but in traditional democratic constitutions, the judiciary restrains itself from playing a prominent role in executive and legislative affairs. Judicial overreach that undercuts the democratic branches is not approved.
In new and fragile democracies, however, courts tend to exercise more influence over other branches of government, reflecting the recognition that these institutions may not have the capacity or willingness to enforce fundamental human rights and provide public services equitably and transparently. Article 199 and Article 184(3) of the Constitution of Pakistan give our superior judiciary the authority to make orders to enforce fundamental rights. Similar provisions exist in India’s constitution.
Judicial intervention in politics should be judged on the basis of whether it promotes democratic governance.
The expanded role of the judiciary in new and fragile democracies of the Global South is visible in India, South Africa, Brazil and Colombia. In these jurisdictions, the role played by courts would, broadly speaking, not be countenanced in more mature Western democracies. In the contexts of newer democracies, the challenge posed by dysfunctional governance is one of the central concerns of the judiciary. This ethos is encapsulated in the words of a former chief justice of the Indian supreme court: “The court has to innovate new methods and devise new strategies for the purpose of providing access to justice to large masses of people who are denied their basic human rights and to whom freedom and liberty have no meaning.”
While new and fragile democracies may present a better case for an expansive judicial role, these same contexts are also most vulnerable to the stifling effects of judicial overreach. Where the judiciary positions itself as a replacement of political branches of government, it runs the risk of stunting the growth of these institutions, and where the judiciary repeatedly shames the executive branch, it threatens to discredit democratic institutions.
In such circumstances, judicial activism may actually serve to promote the backsliding of fragile democracies towards authoritarianism, which is arguably what we have witnessed in Pakistan since the lead-up to the 2018 national elections.
How then should the court’s role be defined in fragile democracies? Judicial intervention in political affairs should be judged on the basis of whether it promotes democratic governance. Judicial activism is justified if it strengthens civil society and promotes constitutional culture among the public at large. Conversely, judicial activism that has the effect of stunting democratic institutions must be rejected.
How does Justice Nisar’s brand of judicial activism fare against this standard? Justice Nisar took on significant public programme and policy initiatives that typically fall within the powers of the executive and legislature, most notably the Diamer Basha and Mohmand dam fund-raising campaign. Justice Nisar also displayed little faith in the ability of civilian bureaucracies to carry out their duties.
Instead of leaving the investigation of certain high-profile cases to law-enforcement authorities, such as the police and the FIA, in their normal course of duty, Justice Nisar ordered the constitution of Joint Investigation Teams.
At the same time, his highly publicised visits to government hospitals where he berated officials for their incompetence reflected an impatience with civil bureaucracies. By taking notice of the quality of bottled water and exorbitant private school fees, the chief justice authoritatively stepped in to fill what he perceived to be gaps in private-sector regulation by the government.
Justice Nisar used his suo motu powers expansively and initiated cases on issues that he considered to be the pressing concerns of our time, such as water scarcity and high rates of population growth. In devising remedies, the voice of Justice Saqib Nisar was pre-eminent. Any role played by human rights activists, civil society groups or the affected public was largely muted.
The effect of Justice Nisar’s court has been perceived as undermining political institutions either by assuming the role and responsibility of political branches or by openly displaying contempt towards elected officials and civil bureaucrats. Justice Nisar’s interference with executive and legislative affairs exposed what many would consider the questionable side of judicial activism and its threat to the evolution of democracy.
How is the SC to avoid this effect while at the same time play its role in enforcing fundamental rights in matters of public importance, as envisaged in Article 184(3) of the Constitution? Public-interest litigation should be used as a means to expand democratic spaces rather than judicial promotion. Instead of aggressively using its suo motu powers, the superior judiciary should encourage cases initiated by affected citizens and civil society groups. Since new and fragile democracies such as Pakistan are plagued with non-transparency, the SC should use its constitutional mandate to fill this gap by devising remedies that create space for civil society to monitor government performance. The main goal of the SC’s exercise of judicial power should be to enhance citizen engagement and accountability.
After Justice Nisar’s retirement, the SC has the opportunity to reassess its constitutional role based on the principle that a more modest exercise of power is conducive to democratic growth. The SC can remedy government dysfunction by creating spaces for civil society rather than using its judicial power to overshadow political discourse.
The writer is a lawyer based in Karachi.
Published in Dawn, January 16th, 2019