CHIEF Justice Iftikhar Chaudhry’s acceptance speech at a ceremony in London where he received a judicial award contained several interesting thoughts on the ‘accountability’ of an ‘independent judiciary’ that are worth dwelling on. In part, CJ Chaudhry said, “the judicial organ of the state is independent in its judicial functions; however, it cannot be left unbridled and without any accountability.” While the chief justice didn’t quite spell it out, in essence he appears to have been referring to the limits of judicial activism — when does it help buttress the democratic and institutional development of a country and when does it impede progress? Without doubt, the court of Iftikhar Chaudhry is one of the most activist in Pakistan’s history. Some of the activism has been unprecedented in an uplifting way: searching for answers on missing persons; questioning the powers of the army-led security establishment; inquiring into the intelligence agencies’ political machinations. And the present SC’s steadfast opposition to military rule has made an army intervention a distant possibility for the most part.

However, when the court has veered onto political terrain, the downside of judicial activism has become apparent. Two recent examples capture the problem of a court using the law to try and shape political outcomes. One, the furore over ‘memogate’ was clearly linked to the skewed civil-military equation in the country and had little to do with any constitutionally or legally verifiable breach of sovereignty and security. Once seized of the matter, the superior judiciary has found itself hard to get rid of it — even as the army and the civilian government have worked together to try and reset relations with the US, the country that was ostensibly being asked to referee bitter divisions between the army and the civilians. Two, the pursuit of the so-called Swiss letter has led the court to convict the prime minister, taking it into a constitutional cul de sac where everyone is tainted and yet in office. So judicial activism really is the ultimate double-edged sword: the line between use and abuse must remain as wide as possible.