Judicial imperialism: Threat to democracy

When honourable judges, while claiming to enforce the constitution, render verdicts that cannot plausibly be related to the constitution the result is judicial imperialism posing a serious threat to the constitution itself.

Unfortunately, the sharp contrast in its inability to uphold the constitution during dictatorships and hyper activism during democratic periods has not shown bright light on the top court in Pakistan.

From the dismissal of the elected assembly by the governor general in 1954 to the abrogation of the constitution by General Ayub in 1958 to another abrogation in 1977 by General Zia to yet another abrogation, not once but twice, by General Musharaf (1999 and 2007), the judiciary has willingly and readily submitted offering no resistance. It not only endorsed abrogation but also allowed dictators to rewrite it.

In 1979, the top court also judicially executed the principal architect of the constitution under Zia’s pressure. Justice Nasim Hassan Shah, a judge on the bench publicly, acknowledged that judges were coerced to hang Bhutto. He may have felt remorse, but it was too little too late.

Heading a 12-member bench, CJ Irsahd Hassan Khan validated the first coup of General Musharraf in 1999 – invoking the doctrine of necessity even though in a previous judgment the Supreme Court had itself declared the doctrine dead and buried.

When Justice Irshad retired in January 2002, the dictator offered him the job of chief election commissioner for three years. Without any qualms, Justice Irshad readily accepted – rather grabbed – it. Justice Irshad had given three years to Musharraf’s unconstitutional rule from 1999 to 2002 and in return got three years as CEC.

This brief recall is important to bring into focus the court’s hyper-activism role during democratic governments.

The strident march towards judicial imperialism began in 2009. During that year, an unprecedented movement was launched for the restoration of Chief Justice Iftikhar Chaudhry and other judges after General Musharraf not only abrogated the constitution a second time on Nov 3, 2007 but also imprisoned more than 60 judges in their houses.

Justice Chaudhry however did not have the reputation to break from past traditions or challenge military dictators or chart any independent course. As a judge he had been on four crucial benches that allowed Gen Musharraf to amend the constitution, endorse his sham referendum, the Legal Framework Order (LFO) and the 17th Amendment and allow a president in uniform to strut the stage. As a member of all benches, he had voted to uphold all decisions of the military dictator.

Having witnessed how Justice Chaudhry unsuccessfully lobbied with Zardari for his reinstatement, one can only express deep regret. Not for any love of Justice Chaudhry but for the hatred for the dictator, the bar rose in revolt. The PML-N, some PPP stalwarts and the bar joined hands in street agitations resulting ultimately in the reinstatement of judges in March 2009. Later it transpired that byzantine intrigues within the establishment had also pulled the strings.

The judges believed that the triumph and glory was the result of their own struggle in seeking greater independence. Soon it appeared that independence was being stretched to mean independence from the constitution and the law also. But, alas, instead of using the new found power and independence to repair the broken criminal justice system the court went on to expand its own powers.

Obsessed with power, sound bytes and media headlines, Justice Chaudhry during his tenure sent home elected prime minister Yousuf Raza Gilani, overturned the ruling of the speaker of the National Assembly, and interfered in the Election Commission of Pakistan, forcing CEC Fakruddin G Ebrahim to resign.

Justice Iftikhar Chaudhry’s reckless verdict in cancelling international contracts involving a mining project in Balochistan and a power project in Karachi cost the country near $8 billion as penalty.

He refused parliament’s call to place the financial accounts of the Court before the Public Accounts Committee (PAC). Both he and CJP Saqib Nisar used suo-motu powers in a way that would embarrass jurists everywhere. While Justice Chaudhry used these powers to investigate two bottles of liquor recovered from a film star, Justice Saqib Nisar raided schools and hospitals and collected funds for building dams.

Justice Chaudhry proclaimed that not parliament but the constitution was supreme – and the constitution was what he said it was and not what was written in it.

The 18th Amendment gave a modest role to parliament in the selection of judges through a bi-partisan parliamentary committee (PC). Justice Chaudhry rejected any parliamentary oversight. Breathing down its neck, he secured the 19th Amendment from parliament – thereby ending even its modest role.

President Zardari discreetly suggested to parliament to stand up against this onslaught. The then chairman of Senate Nayyer Bokhari then laid out a plan to do so. Unfortunately, parliament and the framers of the 18th Amendment failed to stand up – a failure that has cost the nation terribly.

Justice Chaudhry also declared that the prime minister and the president had “no discretion but to forward/appoint the nominees,” of the Judicial Commission. The proceedings of JCP were conducted in secrecy while that of the parliamentary committee were held in the open.

Thus almost solely in his discretion Justice Chaudhry appointed 126 judges. Parliament disagreed with only eight, citing cogent reasons but he disregarded parliamentary scrutiny. The concentration of powers in just one person threatened to turn the court into a monolithic structure like a monolithic army unit but he did not care. Through a unique interpretation of the constitution he sacked over a hundred judges, bypassing the procedure laid down in the constitution. He refused to heed warnings that the court must not be seen “of the judges, for the judges, by the judges”.

Article 58 (2) (b) which had been used in the past to sack elected governments had been undone by the 18th Amendment. But elected governments are still helpless before hyper activism. The judiciary began using Article 184 (3) to send home elected PMs. During the last decade, two out of three prime ministers have been sent home by judges. The third one also may have been shown the door if he had survived the no-trust vote.

The strident accumulation of power by the judiciary attracted adverse international attention. In September 2011, a high-level mission of the International Commission of Jurists (ICJ) came to Pakistan and met serving and retired judges, members of the bars and politicians. The mission declared the Supreme Court was “exceeding the limits of use of suo motu powers” and there was “no transparency and a clearly laid down criteria in allocating cases to different benches”.

Next year, in 2012, the president of the International Crisis Group Justice Louise Arbour visited Pakistan. Her comments were no less poignant. She declared that judges have become “intoxicated with their own independence,” and predicted that the current direction of the court “threatens to upend the very democratic order that restored them to the bench”.

As recently as June 2021, the US State Department also in a report made some highly critical observations about Pakistan’s judiciary. Three months later, the legal fraternity declined to give a formal send-off to those retiring judges who as members of the JC had endorsed the elevation of a junior judge of the Sindh High Court.

This acquisition of more and more powers continued without any credible mechanism for judicial accountability.

A reference was filed against CJP Saqib Nisar by over a hundred members of the civil society. It was not heard as long as he was in office. When Justice Saqib Nisar retired, it was returned saying that it had become infructuous – thus making judges’ accountability almost impossible. This writer was also a signatory to the reference.

The recent happenings in the judiciary brings to mind the ominous prediction that the court threatened to “upend the democratic order”.

There is another risk also.

The lust for acquiring unbridled powers often faces a ferocious backlash. When too much power is concentrated in the hands of one individual in an institution, it results in a power struggle within the institution. This holds true of both the majestic building on Constitution Avenue and the not-so-majestic buildings in Rawalpindi. Beware of imperialism.

The writer is a former PPP senator.