WHEN we refer to the ‘politicisation of the judiciary’, we often allude to the judiciary being influenced by or being under the influence of the political process. In times of military rule, theories such as the ‘doctrine of necessity’ and Kelson’s ‘pure theory of law’ were utilised to legitimise the wishes of the ruling regime, whereas in times of traditional democracy, the courts would be seen to adjudicate on political issues through suo motu actions, thereby augmenting their authority through the enforcement of fundamental rights.
In the times of the PTI government, however, in a characteristic U-turn, there seems to have been a significant flip in these approaches. As opposed to the politicisation of the judiciary, the judicialisation of politics appears to be taking place, which, as per Ran Hirschi, is “the reliance on courts and judicial means for addressing core moral predicaments, public policy questions, and political controversies”.
Whether it be in the attempts to disqualify a sitting prime minister through a judicial commission and a court process, attempts at postponing Gen Musharraf’s treason verdict, threats to petition the judiciary if the opposition’s march proceeds towards Islamabad’s red zone, or even issues pertaining to the ailing Nawaz Sharif and the ECL, the government has approached or sought to approach the judiciary whenever it has found itself in political turmoil.
The newfound eagerness of the government to surrender its domain to the judiciary is grounded in two ground realities. The PTI’s promises of Eden prior to being elected into power were lofty, unrealistic, and unattainable. The PTI had promised the public everything but the kitchen sink, ie, an end to corruption within 90 days, no mercy for the corrupt, an inflow of capital and foreign investment like never before, equality before the law, an end to VIP culture, no further loans, and institutional building, etc.
The PTI is trying to settle political debates through the court.
As time has passed, the government has found itself seemingly unable to reconcile its promises with its actions. Therefore, in order to save face and yet be able to go back to its constituency after its tenure, the PTI appears to be resorting to settling difficult political debates through court proceedings. In this way, the hard decisions can be taken without attribution of any fault to their own, and rather than take responsibility for their actions, they would have a ready scapegoat in a situation where the public reacts negatively to any development.
Secondly, as the government has a very narrow majority in the National Assembly, and no majority in the Senate, its decision-making ability is already severely compromised on account of its lack of numbers. This has forced the government to rely on ordinances in order to legislate and the courts in order to win political debates for which it otherwise does not have the numbers. This has also encouraged the government to avoid taking any hard decision which may take a toll on its fragile and depleting political capital.
The application of this apparent strategy may be seen in how the Nawaz Sharif ECL situation was handled. The insertion of the surety provision as a condition to take his name off the ECL in and of itself was to address the concerns of its supporters, whilst the unreasonable nature of the condition was likely to ensure it being struck down in a court of law.
With some extremely reputable legal minds at its disposal, it is hard to believe that the PTI top brass was not aware of the weak footing of the condition itself. Additionally, the unwillingness of the PTI government to challenge the striking down of the condition in the Supreme Court also points to the government’s lack of seriousness in wanting it upheld.
Similarly, the challenge to the treason trial of General Musharraf by the PTI government also appears to be an attempt to hedge its political bets. In arguing that it was not heard by the special court, on the one hand, if Gen Musharraf was convicted, it could claim having done whatever it could to have stopped it, whereas if he was acquitted, the government could claim that it had been denied a hearing despite petitioning the high court. And if the trial was postponed, it could champion due process and the rule of law.
The government in vogue appears to have understood that decisions carry political costs. By taking easy and attractive decisions themselves, and relegating the difficult decisions to others, the government has chosen a route of least conflict for its survival. Although such a move may guarantee short-term gains, in the long term, it could very well be a cause of institutional imbalances and friction.
The writer is a lawyer based in Karachi.
Published in Dawn, December 1st, 2019