Judicialisation as politics

Published November 29, 2021
The writer teaches politics and sociology at Lums.
The writer teaches politics and sociology at Lums.

LAST week, pre-demolition work on Karachi’s ill-fated Nasla Tower began on the orders of the Supreme Court. The entire process stands expedited under heightened judicial scrutiny. There is, apparently, little regard for the safety of those tasked to do it. Those affected by the demolition decision have been protesting only to be met with baton-charges and police coercion.

The myriad moral and political aspects of this judicial intervention have been discussed at length on these pages and elsewhere. The decision appears to make sense only in the narrowest of frames and fail other tests applied to it. Why this building and not several others that have been given post-hoc legitimation by the judiciary? In anti-encroachment exercises, why does the weight of the judicial apparatus fall on lower- and middle-income commercial and residential settlements and not on sanctified land-grabbing which is seen as being given easy pathways for ‘adjustment’?

Editorial: Selective enforcement of writ of law in Nasla Tower case has sharpened the sense of injustice

Events and interventions in the past 15 years have led to the observation that the higher judiciary should be analysed as a political institution as much as a legal one. Its decisions and interventions are political, ie related to the distribution of power and resources, as much as they are tied to any reading of the law itself. To put it very briefly, in the absence of an apex court cognisant of its own reputation and its place in Pakistan’s political sphere, an outcome of Nasla Tower’s nature would likely not have emerged.

Why one sees different standards being applied to what appear to be similar issues?

To make sense of the court’s contemporary dynamics, one has no option but to go back to the politics established under former chief justice Iftikhar Cha­udhry’s tenure. At the helm of the Supreme Court for nearly six years over two terms, Chaudhry established the institution as a political player by using suo motu powers to take up issues of public importance. He found considerable support among other junior judges in the high courts and the Supre­­me Court, who shared a similar vision for the ‘judicialisation of politics’, and sought to intervene in arenas that the court had traditionally avoided. At its peak, lest we forget, the court was independently taking up cases ranging from national security, to anti-corruption and privatisation of public-sector enterprises and even deliberating on whether the government was allowed to set the price of street food.

Over that fateful period, the court purposefully moved from its perch in political history of being an oft-ignored and pliant institution to one that was autonomous and invited a great deal of public attention. And it has done that fairly well. Since 2008, the higher judiciary has retained high public approval ratings, often matching the country’s military in its popular appeal. A Pew survey from 2013 showed the Supreme Court score an 80 per cent approval rating from respondents across the country. Similar levels of ratings have been maintained in subsequent years as well.

The reputational interests accumulated by judges during the early period of Pakistan’s return to democracy now appear to have locked-in incentives for continued activist behaviour. A some see it, public acclaim may actively be sought, and some members of the judiciary may provide observations that get prime-time slots on the country’s 40 private television news channels.

Read: A structural malaise

Politicians have played a considerable role in this consecration of the court, by seeking legitimacy through it and by relying on it rather than on parliamentary institutions to resolve what are ostensibly political tussles. Nawaz Sharif was guilty of initiating this, when a year prior to becoming the prime minister, he successfully petitioned the court to disqualify the then prime minister, Yousuf Raza Gilani, for his failure to reopen anti-corruption cases against president Asif Ali Zardari. In 2012, Sharif and his party celebrated the judicial sacking of a prime minister, and clearly did not foresee the tendency that would enable the institution to do the same to them.

Once institutional mandates involve settling political conflicts and claiming legitimacy and acclaim through some amorphous media-based feedback mechanism, the pathway to intervening in every sphere of public life is fairly straightforward. Does the ‘public’ need a reminder that the institution cares about them? Summon the prime minister. Are our cities not being governed adequately by local administrators? Force the government to get rid of them. Does the world need to know the institution’s strength? Demolish an apartment building.

These decisions are political because the judiciary appears to be aware of the costs of these decisions and the perceived benefits, and may deem the latter to outweigh the former. But one can ask if it throws its weight in the same manner where the cost/pushback is deemed greater. Is that why one sees different standards being applied to what appear to be similar issues?

None of this is to suggest that judicial interventions cannot lead to positive outcomes in the broadest sense possible, or that the recent history of court-based activism hasn’t produced worthwhile consequences. Legal interventions — where rights and constitutional safeguards are upheld — are always welcome and very much within the mandate of the court too. What is worth considering, though, is that the court operating as an arbiter on a range of issues leads to a distinct problem of accountability, one that the country faces with at least one other institution. As imperfect a medium as elections are at holding politicians to account, there is no equivalent that will put an overly active judiciary to the same test.

The challenge that Pakistani politics faces is a familiar one but with a different actor at its centre. That is reversing an equilibrium where institutional autonomy is guaranteed by institutional (over)reach. At this stage, we may find ourselves reliant on the personal intellectual and moral dispositions of the top members of the judiciary to determine whether the current path is one worth persisting with; but surely a conversation to find an alternative way needs to happen.

The writer teaches politics and sociology at Lums.

Twitter: @umairjav

Published in Dawn, November 29th, 2021

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