Supreme Court; Pakistan’s emerging power center

5 May

SCPakistan’s balance of political power is shifting; the armed forces which once reigned with the aid and assistance of the establishment are on the retreat. The politicians due to their sheer incompetence, greed, lack of scruples and hereditary succession have never been able to deliver. The vacuum of leadership is naturally filled by Pakistan’s apex judiciary with the help of media and the legal fraternity. These are the two institutions to which the present judiciary owes its restoration and its power.

Technically speaking, the Supreme Court of Pakistan is the highest court of the country having appellate, declaratory and advisory jurisdiction. It is one of the three pillars of the State others being Legislature, the law-making institution and the Executive, the institution responsible for delivering services to the people. With the passage of time, the roles of the three institutions have been so corrupted that the concept of separation of powers given in the Constitution has become irrelevant and the lines drawn between the roles and functions of the three institutions has blurred.

The members of legislature are no more enthusiastic about making laws to improve the lot of common man. They are more interested in their share of development funds in hundreds of millions. Pakistan is probably the only country where the entire outlay on development is distributed amongst the legislators. They use their share for “development” and “uplift” of their respective constituencies. Another role they perform is sitting on the standing committees, technically for legislative oversight of government departments. The only oversight they pursue vigorously, of course through blackmailing the senior bureaucracy, is recruitment of their constituents by the ministries under their oversight in violation of all rules of merit. The first source of corrupt practices, thus, is the legislative bodies.

The Executive branch is no better than the Legislature.  It is the placement bureau for providing cushy jobs to cronies in government corporations and deciding on major contracts. This branch is headed by the prime minister and an army of cabinet minister, both senior and junior, and a bunch of parliamentary secretaries. Under the political dispensation, it has always failed in management of economy. The burden of debt that each successive government leaves behind is phenomenal. It utterly fails in delivering services, providing security and managing the foreign relations. Major reason behind the failure of political government is that there is no criterion for selecting the ministers. No minister has adequate knowledge of the affairs of a ministry he is supposed to guide and lead.

Historically, the corrective action was always taken by the establishment comprising armed forces, intelligence agencies, bureaucracy and the judiciary. With the advent of the era of terrorism, the armed forces are busy fighting the terrorists and fighting for their own image. The terrorists have somehow successfully divided the nation into pro and anti-terrorism factions depriving the country of any opportunity to form a consensus to fight the menace of terrorism.

This leaves the field open to some other institution to fill in the leadership vacuum. Pakistan’s apex judiciary has assumed the role of savior of the last resort without much difficulty. The judiciary which had always provided constitutional justifications for military takeover have finally decided to take over the reign of civilian power themselves.

The judiciary, particularly the subordinate judiciary is known for massive corruption. To correct the image, the apex judiciary picks up high-profile cases and rules the roost with the help of the media which now claims to be the fourth pillar of the state. Its image is built by a section of media and its writ is established through hooliganism of lawyers.  Lawyers gang up on almost everything and turned into gangsters every time their interests, genuine or otherwise come under threat. An eye-opening report of the Washington Post clearly shows how these self-proclaimed custodians of rule of law take law into their own hands. Their hooliganism conveniently escapes the notice of the activist apex court that tends to take notice of almost everything happening under the sky.

The courts and particularly a large section of legal fraternity, have pronounced sympathies for the insurgents and terrorists. This is where the differences between the court and the government of Musharraf started to grow. Every terrorist invariably gets released by the courts, even those in the custody of intelligence agencies for interrogation. The court’s insistence to follow the due process of law for separatists and terrorists has given it a commanding position over the establishment. The assassin who killed Punjab Governor Taseer was garlanded by the legal fraternity including some of the senior pro-Taliban lawyers who were subsequently elevated to judicial offices.

The real issue is that while every institution of the State is subject to some sort of accountability, the apex courts have no effective mechanism in place to keep an eye on the judges. The accountability institution of superior judiciary is the Supreme Judicial Council as given in the Constitution. Even this body was made irrelevant by the apex court itself when its chief judge was to appear before the Council in 2007. It was then made as a power tussle between the Executive and the Judiciary and the top judges ruled the Council to stop its proceedings.

The power tussle started when the court tried to establish its supremacy through judicial activism in cases like missing persons and privatization of Steel Mills in 2007. According to Black’s Law Dictionary  judicial activism is a “philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.” Political science professor Bradley Canon has posited six dimensions along which judges may be perceived as activist:  majoritarianism, interpretive stability, interpretive fidelity, substance/democratic process, specificity of policy, and availability of an alternate policymaker. David Strauss has argued that judicial activism can be narrowly defined as one or more of three possible actions: overturning laws as unconstitutional, overturning judicial precedent, and ruling against a preferred interpretation of the constitution.

This was something which the governments were not used to. Governments normally view that  judicial activism usurps the power of the elected branches of government or appointed agencies, damaging the rule of law and democracy. Defenders of judicial activism say that in many cases it is a legitimate form of judicial review, and that the interpretation of the law must change with changing times.

In order to assert its authority, the court started taking suo moto notices and in some cases gave land mark decisions which strengthened the confidence of citizens in the court. Suo moto, according to legal dictionary, generally refers to a situation wherein a judge acts without request by either party to the action before the court. Under normal proceedings before a court, a judge’s role is to direct the proceedings and act on motions filed. When a party to a court case wants the judge to rule on an issue or make a decision regarding something pertinent to the case, he files a motion with the court. The opposing party then has an opportunity to respond to the motion before the judge rules on it. In some cases, a judge acts suo moto, meaning without one of the parties’ asking her to do so. One common example of when a judge may act in this way is when she decides that she does not have personal or subject matter jurisdiction over the case before him or her. In other words, the judge decides that she does not have the legal authority to preside over the case. In that case, the judge may make a motion, without either party asking him or her to do so, moving the case to another jurisdiction or dismissing the case for lack of jurisdiction.

The court has virtually taken over the business of governance itself due to incompetent and greedy public representatives. It has undoubtedly provided relief to countless and has challenged the hegemony of power centers. In the process, it is becoming a power center itself. But without a defined scope of activism and a proper mechanism of accountability, the court is headed on a dangerous trajectory. The lack of notice of lawyers’ hooliganism and conclusion of the case of Arsalan Iftikhar in a non-transparent manner suggest that the court needs to tread very carefully.

Related stories:

Judges in their own cause?

CJ’s foot soldiers draw battle lines against Pakistan Army

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