In praetorian states, like Pakistan, any imbalance in power-relations only benefits extra-constitutional forces. The current crop of judiciary is moving in that direction

The humiliating removal of democratically elected prime minister of Pakistan, Yousaf Raza Gilani, is a serious blow to the infant democratic dispensation. This time it was not the man in uniform who toppled government in power, but it was the Chief Justice of Pakistan who showed prime minister the way out of the PM house. International media labeled it ‘soft coup’ or ‘judicial coup.’ Local media called it a day of salvation for Pakistan. Insularity reigned supreme in the local media. The conflict from global theatre transformed at local and institutional level in Pakistan. There was a flurry of speculations. Specters of ‘-gates’ like flood-gates in pre-removal of the PM got respite to comfort the judiciary and the media. In this mishmash of polemical style of reporting this event, the real story got lost in the woods. Dr. Waseem in his discerning article ‘Beyond Judicial Activism’ (2009) published in Dawn wrote, “The media has generally pointed to the `mood` of the apex court in terms of its professed commitment to root out corruption from society. Apart from the `mood`, which is hypothetical and mere conjecture, the judiciary`s approach to corruption has definite implications as far as the thrust of its judgment and argumentation is concerned.” The thrust of its judgments on the NRO previously and the PM recently is person-specific. It was not directed towards institutions, which according to modern political theory, are above persons in any democracy and outlive those who head them.

There is a greater logic of power politics involved in this politicized judiciary. The judiciary in Pakistan is acting as a law unto itself. It is active in pursuing suo motu cases without realizing their nature and its own jurisdictional capacity to take up those cases. It is active in recommending appointments against the wishes of the country’s executive. The judges recite poetry in their remarks to invoke popular emotions. The higher judiciary in Pakistan has become a classic case of taking notice of every event by virtue of, what Jean Baudrillard called, hyper-reality shown on television screens or print media. How it will affect the political process and what will be the final outcome of this institutional clash? How the incumbent party in power would behave in the aftermath of judiciary’s show of power?

Many partial observers of legal fraternity have observed that the higher judiciary in Pakistan is acting against constitutional mandate and intruding into the structure of executive and legislature. The contempt of court has become an instrument in the hands of superior judiciary to haunt any person. Interestingly, the contempt of judges has also become synonymous with the contempt of courts. Markandey Katju writing in the Express Tribune observed, ‘Moreover, this proposition enunciated by the Supreme Court can be very dangerous for democracy, because if the chief justice and his companion judges wish to oust a prime minister (hypothetically, because of personal animosity or some other reason) they have only to pass an order without jurisdiction and if the prime minister objects to it, they can convict him for contempt of court and then disqualify him. This will make the Supreme Court a superior body above the other two organs of the state, instead of only one of the three equal coordinate organs.’

The net result of this politicalised and moralised course taken by the higher judiciary is that its public profile is plummeting down rapidly. Back in 2007, when the CJP was ousted by General Musharraf, the superior judiciary became center-point for democratic forces to rejuvenate their political fortunes. There was a unanimous consensus on the credibility of superior courts particularly the Supreme Court. With the passage of time, public mood changed drastically as conflict between the executive and the judiciary began to unfold. It polarized the whole nation. The executive proposed appointments and the judiciary disposed those appointments. The conflict extended its tentacles into political realms also. The recent by-elections in Multan spoke volumes about this conflict. One supposedly independent candidate used pictures of the Chief Justice, Iftikhar Mohammad Chaudhry, in his election campaign. This polarization is becoming stark as clash between judiciary and legislature is becoming vivid and dangerous for the survival of democracy.

The superior judiciary has become a partner in the formation of political conflict rather than conflict resolution on legal and constitutional basis. The history of Pakistan has shown that whenever superior judiciary alienates democratic forces, it is usually debunked by extra-constitutional forces. Democratic forces in post-colonial societies are creators of consensus-based constitutional mechanisms framed specifically for conflict resolution on authority, autonomy and economy and keeping monopoly over means of violence. Violence remains within limits in a democratic system of governance only. Democratic system empowers those actors who articulately participate in politics at constituency level as observed by celebrated Indian sociologist Andre Béteille. These actors become balancers in imbalanced socio-political ties created during authoritarian regimes. When these balancing, democratic forces are toppled from political framework, conflict gets intensified. Pakistan is dangerously moving towards conflictual state where consensus on major policy issue will hardly be achieved. Superior judiciary is contributing in this increasing conflict-ridden political process at institutional level.

What is needed for the judiciary is to shun the heroic populism out of media blitzkrieg embedded in the reactionary worldview based on conflict everywhere. It has to be retrospective and should not take legal view of every political issue. Sentimentalism and partiality in dispensing justice would widen and deepen conflict amongst three pillars of the state namely the executive, the legislature and the judiciary. The judiciary in parliamentary democracy is a custodian of constitution and democratic forces provide societal strength to the judiciary in protecting the constitution. Both are indispensible for each other. In praetorian states, like Pakistan, any imbalance in power-relations only benefits extra-constitutional forces. The current crop of judiciary is moving in that direction by becoming an agent of status quo forces rather than dispensing its duties in assuring smooth transition to democratic system of governance. Political forces must raise their public profile to wipe out commonly-held adage like ‘politics is a dirty business’ or ‘all politicians are bad.’

At current juncture, Pakistan cannot afford further polarization of masses on political matters as coalitional system of power-sharing has failed to provide people an iota of relief from hardships of life. This time, superior judiciary should realize this exigency of time to clear the mist from public mind by keeping its own house in order and working within its jurisdiction; otherwise more contempt of court cases will spring up and encumber the superior judiciary. Judges should keep irrelevant moral schemes out of legal framework in its modus operandi and rely on their own conscience without taking notice of any contempt against them as they tolerate slanderous remarks against other institutions of state by people from every walk of life.

The paper is dedicated to Dr. Prof. Mohammad Nizamuddian, who proved to be a true epitome of hardwork for me.

Hammad Raza works as Project Report Writer with Center for Research and Innovation UK.  He holds a  M.Sc degree in International Relation. He has worked as Coordinator to the VC of the University of Gujrat.