The judicialization of politics has been propelled world-wide under the pressure from the international financing institutions and the Washington Consensus in order to provide protection to the foreign investment

The ‘Judicialization of politics’ is a global phenomenon. It has, however, not become a topic of general discussion, yet. Ran Hirshl, a Canada-based political scientist, argues that the "fundamental constitutional reforms have been transferred into an unprecedented amount of power from representative institutions to judiciaries, whether domestic or supra-national. One of the most significant effects of this trend has been the transformation of courts worldwide into major political decision-making bodies and a corresponding judicialization of 'mega' politics." Ran Hirschl, in his paper “The New Constitutionalism and the Judicialization of Pure Politics Worldwide” published in Fordham Law Review (Vol. 75, 2006), says, “despite the increasing prevalence of the judicialization of politics - the ever-accelerating reliance on courts worldwide for addressing core moral predicaments, public policy questions and political controversies, academic discourse addressing this phenomenon remains surprisingly sketchy. With a few notable exceptions, the judicialization of politics is often treated in a rather unrefined fashion as an organic byproduct of the prevalence of rights discourse”.

He distinguishes among three broad categories of judicialization: 1) the spread of legal discourse, jargon, rules, and procedures into the political sphere and policy-making forums and processes; 2) judicialization of public policy-making through "ordinary" administrative and judicial review; and 3) the judicialization of "pure politics" – the transfer to the courts of matters of an outright political nature and significance including the issue of core regime legitimacy.

For a host of different reasons, judicial prominence has become mainstream in numerous countries, developed and developing alike. The term "judicialization of politics" means that certain matters that were traditionally decided through political channels, and that were considered belonging to political democracy, begin to be decided increasingly more so by judges, or at least become far more dependent on judicial decisions.

The critics of this phenomenon believe the high judiciary, and the judiciary in general, is increasingly making decisions that erode politics. In other words, the judiciary is “stealing the role” of politics worldwide.

Rodrigo Uprimny Yepes (Sur vol.3, São Paulo, 2007) while analyzing the emergence of the phenomenon of judicialization of politics in Colombia argues one of the factors propelling judicialization has been international financing institutions and the Washington Consensus to provide protection for foreign investment, since without an independent judiciary, there can be no legal protection, nor security for property or contract rights. These forces have implied a certain strengthening of the judicial structure, and indeed a judicial branch with more personal and political independence which has a greater chance of intervening in political processes.

Concept of ‘Judicial Review’

The concept of judicial review of legislation originated from the historic case of Marbury vs. Madison (1803), which was decided by the US Supreme Court. Judicial review in the United States was and is practiced by the Supreme Court, not a specialized Constitutional Court. However, in the early 20th century, a well-known philosopher, Hans Kelsen, initiated the idea of a specialized and separate Constitutional Court with powers of judicial review, among others. A fundamental reason for separating the Constitutional Court is the desire to isolate legal cases that contain a political dimension from the Supreme Court, which is expected to focus on general cases, free from political intervention.

Though the UK now has judicial review of parliamentary legislation, courts there still do not strike down legislation. What they do is issue a “declaration of incompatibility” which gives the politicians a timeframe within which they can amend the law if it conflicts with certain guarantees. If they do not do so, the cost is political. The public, and not the courts, take them to task at the polls. And the US Supreme Court has never struck down a constitutional amendment. Congress’s voice is considered the voice of the people. In a major recent ruling, Chief Justice John Roberts said that it wasn’t the job of the Supreme Court to protect the people from the consequences of their political choices. 

“Political Question” Doctrine

The isolation of politically nuanced cases has become more widespread with the development of the “political question” doctrine. This doctrine explains that the general courts are not intended to address political issues. Instead, these political questions should be decided by the parliament or the people through political processes (see: Ginsburg 2003), or by a specialized Constitutional Court. This doctrine has been stated firmly in various Supreme Court decisions, such as Tanada vs. Cuenco (1957) in the Philippines and Baker vs. Carr (1962) in the US.

The resolution of jurisdictional conflicts between state institutions, as well as electoral disputes — both highly political, is now in the hands of the Constitutional Courts in many countries. These courts are not free of political influence as sixteen of the Constitutional Court Justices in Germany generally have an affiliation either directly or indirectly with the political party that nominated them.

As the cases in Constitutional Courts have political dimensions, these courts usually come under severe criticism. The aggrieved parties channel their sense of grievance into efforts to challenge the Constitutional Court’s authority. For example, three largest political parties of Mongolia jointly agreed to repeatedly disobey the decisions of the Constitutional Court because it was deemed detrimental to the Parliament.

Political pressure was also applied when the Constitutional Court of Thailand was to declare whether or not to dissolve the three ruling political parties due to electoral violations. On the day when the Court was to read the decision, the supporters of the three parties were mobilized to block access to the Court, so the judges could not enter. In the end, the reading of the decision was shifted to the State Administrative Court building.

“Juristocracy?”

Judicial activism is attributed to the emergence of a type of ‘Juristocracy’. James Grant, in his article “The Scourge of Juristocracy” published in Wilson Quarterly, explains that since the end of World War II, there has been a worldwide convergence toward U.S.-style judicial supremacy—or what some observers now call “juristocracy.” In both long-established and new democracies, as Ran Hirschl shows in his book Towards Juristocracy (2004), “constitutional reforms” have taken political power away from elected politicians and shifted it to unelected judges. When democracies were established in Southern Europe in the 1970s, in Latin America in the 1980s, and in Central and Eastern Europe and South Africa in the 1990s, they almost all included a strong judiciary and a bill of rights…By handing such decisions to the judiciary; juristocracy denies citizens their democratic right to participate in the political decision-making process.”

Justice Antonin Scalia is among those who insist that judges should not “make” law; they should simply apply and interpret legislation. Judges, he insists, should not appeal to the idea of a “living constitution” or look to the purpose of the law or the intention of the legislature. If they do, they will be making a judgment based not on what the law in fact is but on what it ought to be. Instead, judges should look to the original meaning of the text…Unelected judges should not be lawmakers. Only if judges follow the original meaning can judicial review be fully democratic and neutrally conducted.

Justice Oliver Wendell Holmes, in his dissent in Lochner, called for judicial restraint and argued that, in a democracy, the legislature and not the courts should decide such controversial issues. The legal realists, as these jurists became known, acknowledged that judges’ political biases played a key role in judicial decision making, and that judicial decision making unavoidably entailed judicial lawmaking.

James Grant argues, in many occasions, the courts have held the executive to account. From a democratic point of view, this is perfectly acceptable when the executive has exceeded the powers established by Congress as the Congress—unlike the courts—is democratically accountable to the people. Mark Tushnet, one of America’s shrewdest constitutional commentators, has argued that judicial review should be abolished except when expressly sanctioned by Congress. The U.S. Constitution, he writes, needs to be “taken away from the courts.” James concludes only by turning away from juristocracy can America—and the world—produce a system in which democracy will be capable of flourishing.

Pakistan’s Context

First a reflection from history. Amjad Bhatti in his article “Judicialisation of Politics” (The News on Sunday, 2008) writes, “After the first Mysore War, the Regulating Act 1773 was passed by the British Parliament through which the East India Company was made responsible to the parliament. Simultaneously, the office of governor-general with four British councilors and a supreme court was established in Calcutta with a chief justice and three judges. 

“Elijah Impey was the first chief justice, who is known for maliciously executing an influential Brahmin, Raja Nand Kumar, in 1775. Kumar angered Warren Hastings, the then governor-general, accusing him of taking bribes from the widow of Mir Jaffar and other officials. Reacting to it, the governor-general, by using another native Mohan Parsad, brought a case of forgery against Kumar and had him convicted by Elijah and got him executed -- perhaps it was one of the first judicial murders committed by an Anglo-Saxon judge in India.

Nonetheless, the saga of judicial manipulations did not end with the end of colonial rule in Indian subcontinent. It looks as the story of Nand Kumar and Mohan Parsad continues even today. Forget about Zulfikar Ali Bhutto's much tormented execution, many more such reported and unreported examples establish that the history of Pakistan's judiciary is replete with executions, trials, convictions, concessions and remissions with obvious political overtones. From Maulvi Tameezuddin to Musharraf's eligibility case, judiciary assumed the role of political decision-making which triggered the 'judicialization' of politics in the country. Some critics believe that judiciary is inherently a pro status-quo institution which reciprocally swaps legitimacy with the establishment.”

Pakistan has been passing through an age of judicial activism, juristocracy and hence judicialization of politics. The role of higher judiciary is being discussed critically recently. A number of judgments announced by the Supreme Court or the High Courts, particularly the disqualification of the prime minister Syed Yousaf Raza Gilani by the apex court, are under scrutiny by constitutional experts, lawyers and political analysts who are held in high esteem.

The first reaction on the disqualification of Mr Gilani was by Markendey Katju, a judge of the Supreme Court of India (2006 to 2011) and now the chairman of the Press Council of India. Justice Katju, writing in the daily newspaper, The Hindu, questioned what he said was the “lack of restraint” on the part of Pakistan’s superior judiciary. Justice Katju wrote: “In fact, the court and its Chief Justice have been playing to the galleries for long. This has clearly gone overboard and flouted all canons of constitutional jurisprudence.”

In another article published in the Express Tribune, Justice Katju writes that the philosophy behind the doctrine of judicial restraint is that there is broad separation of powers under the Constitution and the three organs of the State, the legislature, the executive, and the judiciary must respect each other and must not ordinarily encroach into each other’s domain, otherwise the system cannot function properly. Also, the judiciary must realize that the legislature is a democratically-elected body which expresses the will of the people (however imperfectly) and in a democracy this will is not to be lightly frustrated or thwarted.

In this regard, Justice Katju quoted Justice A.S. Anand, former chief justice of India who observed, “Courts have to function within the established parameters and Constitutional bounds. With a view to see that judicial activism does not become judicial adventurism; the courts must act with caution and proper restraint. They must remember that judicial activism is not an unguided missile. Failure to bear this in mind would lead to chaos. Public adulation must not sway the judges. They must remember that they cannot run the government.”

Asma Jahangir, former president of the Supreme Court Bar Association, in an article “A law rarely applied” published in DAWN, writes, “In modern jurisprudence, even where the law for scandalization and ridiculing the judiciary exists it is rarely applied. The restored judiciary has, unfortunately, used it without mercy. Judges were issued notices of contempt, one prime minister has been sent packing and numerous officials are daily threatened with its application…Generally, a judiciary should be respected and revered as a pivotal institution for the promotion of the rule of law and democratic values rather than be feared for its power…It is rightly argued that contempt laws help to ensure that the authority of the courts is not undermined. It prevents public confidence in the administration of justice from being undermined. It is also argued that the contempt law shields judges who otherwise cannot answer back to unfair and lethal criticism. However, the criminalisation of scandalising the judiciary suppresses free speech and does not raise the image of the judiciary. And the resort to penalising people for contempt of court tarnishes the graceful image of any judiciary.”

I.A. Rehman, in his article “No room for reason?” published in DAWN, while referring to the outside-the-court address of the Chief Justice in Karachi argues, “ Equally unquestionable is the fact that the principal state organs have their roles fairly clearly defined: the executive must act within the constitution and its actions that are ultra vires of the constitution can be struck down; the judiciary is to interpret the laws and the constitution and, except for the Zia gift of power to the religious court to lay down the lines of legislation, it can neither make laws nor change the constitution; and the legislature cannot make a law in violation of the constitution but it can amend the constitution and, under special authority, draft a new basic law.”

Mr Rehman laments ordinary citizens also lack the ability to see the country’s constitutional stream as “crystal and undefiled waters” because they cannot forget what has been done to the constitution over the past 38 years, more by military dictators than their civilian pupils, and also by the judiciary that allowed Zia and Musharraf to pollute the constitution according to their whims and caprice.

He cautions the honorable judges need to be wary of anyone who advises them to start authoring new political theories by deposing Rousseau and Locke because in the ensuing debate they could possibly be found in the wrong and no democrat would like the judiciary to become anymore controversial than it already has.

Saroop Ijaz in his article writes, “Even now there is a curious reluctance to unequivocally condemn, or mildly speaking, criticize the judgment of the Supreme Court. Yousaf Raza Gilani and his maladministration is not the issue here, the issue is considerably more fundamental, namely the right of the people to elect their representatives and also to send them home. The Supreme Court does not represent the will of the people and the Court repeatedly saying so to the contrary would not change that. While commenting on the contempt of court Saroop argues, “If the Court in fact does believe that it represents the will of the people then it will have to make its peace with the fact that people talk and also talk back.”

Babar Ayaz in his article “Power struggle at Constitution Avenue” says, “Disregarding people’s plight and rising terrorism in Pakistan, the judicature and parliament and executive are immersed in a destabilizing power struggle. Every morning all wary eyes are set on the majestic building of the Supreme Court (SC) of Pakistan; every evening warier eyes and ears turned to their neighbor in the President’s House on Constitution Avenue.

Both want more constitutional space in the politics of Pakistan. In a well-entrenched democratic dispensation, this struggle for power is a normal part of the evolutionary democratic process. In Pakistan, where internal insurgency, external pressures, economic sluggishness have already bruised people badly, squabbling for power between institutions is the last thing people want. This is the time when the constitution exists as a fresh and dynamic document as it would be seen when amendments of fundamental nature were made. Yet even the most clearly written clauses are being called to interpretation by the courts.

This author in his article “When is the full coup?” published in the Viewpoint Online, pointed out towards another aspect of the Gilani’s verdict which could have serious repercussions. This author pointed out: “The Supreme Court verdict has not only destabilized the government and threatened the nascent democratic process it has fanned the flames of ethnic prejudices yet again. The decision is being seen as the ‘decision by the Punjabi court’. The disqualification was celebrated and sweets were distributed only in Punjab. Contrary to this, the chief minister of Balochistan, soon after the verdict, announced that Mr. Gilani would be accorded the prime minister’s protocol when he would visit the province.”

Points to ponder

In the Charter of Democracy it was agreed upon between the PPP and PML-N leaders that a “Federal Constitutional Court will be set up to resolve constitutional issues, giving equal representation to each of the federating units, whose members may be judges or persons qualified to be judges of the Supreme Court, constituted for a six-year period. The Supreme and High Courts will hear regular civil and criminal cases. The appointment of judges shall be made in the same manner as for judges of higher judiciary.” This, however, could not materialize while drafting the 18^th Amendment.

So, in Pakistan, there is no separate constitutional court. The constitutional and political disputes are heard and decided by general higher courts. For example, a petition regarding construction of Kalabagh Dam is being heard in the Lahore High Court. There is mistrust among different federating units of Pakistan. Political parties, having strong base in smaller federating units express their reservations about higher judicial structures.

Judicialization of politics in Pakistan, when constitutional court to resolve political disputes does not exist and when ethnic biases are strong in the society, may cause further bitterness among different peoples and regions of the country. Already, questions are being raised why did Makhdoom Shahab Uddin and Syed Musa Gilani, parliamentarians from Punjab, chose to approach higher courts in Sindh and Khyber Pakhtunkhwa provinces for protective bails.

In the wake of ‘judicial activism’ vis-a- vis fragile federation and tense political atmosphere, a nationwide debate needs to be launched to answer the following questions by legal and constitutional experts, academia and social and political scientists: Whether or not the judicialization of politics is desirable democratically? What are its merits and de-merits? What is its impact on nascent democratic process in the country and democratization of the state and society? And, in the light of “Political Question Doctrine”, is the Constitutional Court with representation of all federating units, need of the hour to resolve the issue of mega or pure politics?

Mazhar Arif is a senior journalist, media critic, researcher, writer and people’s rights activist presently working as Executive Director, Society for Alternative Media and Research (SAMAR), an organization seeking space for voices of the voiceless in the media and engaged with promoting media literacy to enable readers, viewers and listeners to understand and analyze media contents.