"Judges rule on the basis of law, not public opinion.” This is a famous quote of the former Chief Justice of the United States, Warren E. Burger. Burger served in this capacity from 1969 till 1986.
This position on the role of judges was taken as a maxim across the world. However, in the last decade or so, things in this context seemed to have gone the other way, at least in Pakistan. Now, one often hears terms such as ‘judicial populism’. This genre of populism too requires a human driver. In this case, someone who is known as an ‘activist judge’. This is yet another term that has been frequently heard and used in commentaries and political rhetoric, perhaps now more than before.
In none of the two books by Justice Burger that I read, did he even once mention any of the two aforementioned terms. There is thus enough evidence to suggest that ‘judicial populism’ is a current coinage. However, the term ‘judicial activism’, is much older, but it was not used as frequently as it is being now.
The American attorney Keenan D. Kmiec, in an essay for the October 2004 issue of the California Law Review, writes that the first time the term ‘judicial activism’ was used was by the American historian Arthur M. Schlesinger Jr. in 1947.
But since he was a staunch liberal and supporter of the Democratic Party, one can conclude he was vaguely criticising the American Supreme Court judges who had initially overturned the many unprecedented economic policies outlined by President Franklin D. Roosevelt to address the economic depression in the US in the 1930s.
How did judicial activism evolve into judicial populism? And does the judiciary really represent the people’s will and interests more than the politicians?
Ever since the 1950s, there have been at least seven well-known cases in the US which experts have described as being influenced by judicial activism. But, even though some of these judgments have been hailed as bold and timely, the idea of judicial activism has largely been criticised by law experts and many sitting governments.
The Black’s Law Dictionary, one of the most used law dictionaries in the US, explains judicial activism as a decision-making process whereby judges allow their personal views about public policy to guide their decisions. Other critics have claimed that it intrudes in the workings of the executive and legislative branches of the government and disturbs democratic order.
But there are also those, such as the American Professor of Law Brian Z. Tamanaha who, in Beyond the Formalist-Realist Divide: The Role of Politics in Judging, notes that an absolutely objective interpretation of law is impossible and, therefore, a judge’s personality and/or views are bound to influence his judgments.
The debate around the idea and act of judicial activism is now decades old. But many commentators are of the view that, instead of aiding the judiciary to come to a middle-ground, judicial activism has broken away and sprinted towards populism.
Eight years ago, the Pakistani academic and author Mohammad Waseem more-than-hinted that judicial activism in Pakistan was transforming into ‘judicial populism’ in his essay for the 2012 edition of the Journal of Contemporary South Asia.
Dr Waseem was writing when Chaudhry Iftikhar was the country’s Chief Justice (CJP), brought back to this position by a ‘lawyers’ movement’ against Gen Pervez Musharraf’s regime that had ousted him on charges of corruption.
On the former CJP’s style of judging, Dr Waseem writes: “Confrontation between the executive and judiciary under him led to speculation about the imminent collapse of the democratic system. The use of judicial review by him was widely criticised as an attempt to encroach on the territory of the legislature. The [Supreme] Court’s pursuit of public interest litigation through frequent suo motu actions taken in a populist mode, led to brinkmanship on the part of the judiciary. However, the Court’s pursuit of judicial reform relating to speedy justice and accountability of the higher judiciary remained far from satisfactory.”
In order to explain what a ‘populist judge’ is, SOAS University of London’s Dr Yasser Kureshi in an essay for Dawn (February 1, 2019) writes: “The populist judge embraces a more aggressive form of judicial activism, prioritising not only policy over precedent, but also outcomes over processes. The populist judge is unbound by precedent and procedure, interpreting away any constitutional limitations on what the judge can and cannot do.”
Indeed, a lot has been written on judicial populism in Pakistan since the return of Chaudhry Iftikhar. Saqib Nisar who was CJP from December 2016 till January 2019 was also described by many as a populist judge. Only recently, when the current CJP, Justice Gulzar Ahmad, ordered the Sindh government to allow the opening of shopping malls in Karachi — when the number of Covid-19 infections were on the rise — critics of the decision explained the decision as populist and even ill-informed.
But is judicial populism squarely a Pakistani phenomenon? Not quite. A similar decision was delivered by the Supreme Court of the US state of Wisconsin. The US has the highest number of Covid-19 cases and deaths. So it was understandable the manner in which this decision was roundly criticised.
The Supreme Courts of Israel and Brazil are also seen as dealing in judicial populism, even though they haven’t yet said much on the Covid-19 pandemic. The Brazilian Professor of Law Diego Werneck published an insightful essay, exploring why judicial activism mutates and becomes judicial populism. The essay appeared on the website of the academic forum Verfassungsblog.
According to Werneck, courts have traditionally been targets of populists who criticise them for being elitist and bureaucratic. To counter this, especially in an era of rampant populism and unabashed populists heading governments in various countries, Werneck writes that courts have begun to preserve their authority by adjusting their decisions to trends in public opinion. Werneck then adds: “By adopting the populist vocabulary, the courts claim to represent and vindicate current majority sentiment against what are perceived as corrupt politicians.”
Werneck writes that this can be triggered by general discontent or a protest movement. He gave the example of the mass 2015 protests in Brazil, during which its Supreme Court judges and some trial judges did not hold back in castigating ‘corrupt politicians’ in the media and, in the process, gaining significant popularity. This encouraged their populist style, so much so that the wife of a popular trial judge even set up a Facebook page for his ‘fans’.
This scenario is remarkably similar to how the higher judiciary evolved in Pakistan after the 2007 lawyers’ movement and, then again, after the 2014 protests (dharna) held by Imran Khan’s PTI. But Dr Waseem adds another dimension to this.
He writes that when elected representatives clash in developing countries, non-elected state institutions are invited by both to mediate. In the past, the military used to be that sole mediator, despite the fact that it often ended up getting rid of both the bickering parties. Waseem then adds that, ever since the time of Chaudhry Iftikhar, the judiciary too has been approached by politicians to settle scores against opponents. But, the more this happens, the more space the executive and the legislative lose, because the judiciary now believes it represents the people’s will and interests more than the politicians.
Published in Dawn, EOS, May 24th, 2020