Pitfalls and prospects

Against the backdrop of fairly abysmal governance levels across the country, there is a strong case for an interventionist, forward-leaning and aggressive judiciary. If judges’ kicks and punches could move the rusty wheels of government departments to address or dent some persistent problems such as clean drinking water, food and beverage adulteration, encroachments, pensions, and even crime and corruption, why not?

The teeming millions in this land of the pure have a grinding existence. They suffer and toil and toil and suffer, and this vicious cycle ends only when their hard lives end. Surely, they deserve better than to be in the captivity of a callous and rapacious elite that treats them, through a long and institutionalised process of internal colonisation, as slaves and subjects rather than as equal citizens with equal rights. So when our present-day judges take off their gloves and turn dense constitutional ploughshares into shiny saviour swords, adulation should be in order. Right? Wrong. And here’s why.

First, we have been down this road before and the end wasn’t anything to write home about. You only need to list the cases of ‘public interest’ that the mighty court of former chief justice Iftikhar Muhammad Chaudhry took up in his long tenure and match it with the results to know what a wild goose chase he had in almost all of these cases. The success rate of fixing the system was low and became even lower as he kept on trying to keep up the appearance of having ‘made a difference’, and continued to welcome new petitions. Disappointment grew in reverse proportion to performance and in the end nothing noteworthy was achieved.

Now, several years later, CJ Chaudhry’s court and the tenures of the judges who served with him are not exactly remembered for revolutionary changes in governance or for making alterations in the conduct of governments. Personally, he is remembered for the lawyers’ movement and – if you still trust what Imran Khan says – for the so-called 2013 election controversy. This is so despite the fact that he was a mighty judge who had the genuine sympathy and backing of lawyers and for a long time a large section of the people as well. More than that, he had the support of the entire range of judges serving with him.

The present-day dispensers of justice led by CJ Saqib Nisar are not from that era of heightened public and political interest, which carried judicial activism forward during the Iftikhar Chaudhry era. Unlike their predecessors, they have not been pushed in this direction by the power of a broad-based anti-dictatorship movement. They are seen to be at war with elected representatives. This means that they have a much weaker base to operate from than the Chaudhry court had. This taints their effort to make their judicial activism productive, purposeful and truly popular. Also there are good reasons to believe that even within the court not everyone is keen on riding the do-as-we-please high horse. And that is a debilitating disadvantage to have. It can show up in strange forms. Consider what happened in India recently where judges broke ranks and revolted. Of course, we have our own tradition of full courts imploding and fragmenting right before shocked national eyes.

More important, the environment in which the present-day judiciary is working is vitiated beyond repair and is littered with the broken glass of political controversy, which is expanding as fast as the clock is ticking towards the next elections. High-profile public interest cases may grab headlines for a while and may create a favourable context for good Samaritan judicial work, but the grim fact is that the reputation die of all judicial work is already cast by the iron and steel of the Panama verdict, which remains one of the most hotly debated and contested judgment of modern times. The political fallout of the verdict is widespread and has locked the judges in a bruising battle with politicians.

And now they have pushed the nuclear button of the contempt law as a protective measure against the growing onslaught. However, by targeting one party they have unwittingly opened up another front. How many will they send to jail and how many will they spare? Politicians thrive on conflict. They love it. Vilify them and they will become more virile. Slap them and they will soar. Judges can’t be in a state of perpetual conflict with those who represent parliament. In such conflicts, eventually judges bleed more profusely than those they poke.

This fact alone makes every new step taken in the direction of more judicial activism to be a step downhill on a slippery slope. To stabilise itself, the judiciary will need support. It will need to hold on to some handrail or the other. For now much of the support is coming from the PTI – which itself is a bit of a scandal. When Imran Khan promises to save the judiciary against Nawaz Sharif’s real or imagined attacks, he is hardly elevating the image and reputation of the judiciary or showing it in non-partisan light.

More to the point, the assumption in the PTI’s support for the judges is that there is only one villain in the script and that is Nawaz Sharif. Any focus on the PTI’s own shenanigans is considered a breach. We got a glimpse of this in Imran Khan’s anger-filled public retort to the serious questions raised by the court about the KP police’s performance; Khan thought the questions would demoralise the KP police. Later, in another context, he defended the KP police as the best in the country, despite the department’s manifest failures in not just one but several high-profile cases. Political support is therefore fickle and will only be available if the judiciary’s work is allowing the PTI more political advantage against their key opponent, the PML-N.

The other source of support for the judiciary can come from the bars, whose lawyers are described by the CJ as his soldiers. While this sounds impressive and heart-warming, bars and the lawyers are a double-edged weapon. They chant and cheer the judges occasionally but there is no consistency in their support. Like political support, their helping hand is also preconditioned to leniency shown towards their conduct which includes at times thrashing lower court judges and sometimes taking on high-court chief justices as well.

The last bastion of support for the judges could be Pakistan’s omnipresent, almighty and durable establishment, which can get any and everything done if it so wishes – at least that’s what its image is. For the judiciary to seek the establishment’s support to carry on with its activism will require ‘mutualism’ – a biology term that refers to a symbiotic process beneficial to both organisms for survival and nourishment. This arrangement can temporarily protect the judiciary against political agitation and media criticism, and provide them with an administrative machinery to get their orders implemented. It can be a silent arrangement quietly wrapped in the garb of constitutionality and public service and safely placed in the ‘no questions asked’ category.

But then judicial activism will be little more than a coup by another name. The establishment’s support does not come for free. Nor does it come for the love of democracy. It is a loaded deal that requires the other partner to dance to its tunes. Surely no self-respecting judge or judiciary can be happy with an arrangement like this, which will be most immoral and viciously anti-democratic.

All of this makes the current state of judicial activism a complex and problematic exercise. Good intensions aside, it is a path that winds up to more confrontation and more friction. The publicity surrounding the present phase of activism might hide its pitfalls for now, but it is only a matter of time before these are fully revealed to the horror of the nation. Judges are best suited for dispensing justice. When they step beyond this secure realm, they either need crutches to stand on or risk their reputations being put through the shredder. And we know that a judge with a crutch or a tainted reputation is no better than a politician without a vote-bank. Both are useless. Both are poor role models. The risks of judicial activism are more than its gains. It must be revisited.

The writer is former executive editor of The News and a senior journalist with Geo TV.

Email: syedtalathussain@gmail.com

Twitter: @TalatHussain12