The Rise Of Judicial Activism: Is Democracy Under Threat?

Published on CHOWK, by Raza Habib, December 25, 2009.

After the NRO revocation, the opinion holders appear to be divided into two polar camps. First camp is of the supporters who are hailing the advent of the “new” era of the rule of law. Within this section a sizeable chunk detests the president, is skeptic of the concept of democracy and not surprisingly belongs from the middle class. Right now led by firebrand media, this chunk is increasingly critical or at least visibly disappointed by the revival of democratic rule. It is pinning its hope on increased judicial activism where the courts will be deciding the matters belonging to executive. The criticism is no longer exclusively focused on PPP but is increasing to include the entire democratic set up. Right now the main brunt may be borne by PPP but even PML (N), the other main party, is also feeling the heat. The main point of these opponents of democratic set up is that democratic parties have failed to establish the rule of law.

On the other hand, some of the liberal elements are actually critical of the decision and labeling it a defeat for the democratic process. Right now as the presidency comes under pressure, the persona of the president is increasingly being equated with the very notion of democracy. As opposition to the office of presidency increases a sizeable portion of the liberal elements are lamenting the “undemocratic” forces’ unholy alliance to topple the evolving democracy. According to them, Democracy should be given a chance as it needs time to evolve and that evolution would lead to stronger and more accountable institutions overtime. This strain of thought besides defending democracy goes one step further: it also equates revocation of NRO or judicial activism as counterproductive to evolutionary democratic process and treats it as direct violation of the people’s mandate.

Why does such a polarization exist? Why are the two concepts, rule of law and democracy, which coexist in the western democracies, are apparently in conflict in our part of the world? Why Pakistani middle class is deeply skeptical of democracy? Is there a genuine scope for judicial activism and if yes, why? Why the liberal side of the political spectrum is branding a revocation of a controversial law as a regressive step rather than appreciating it? Some have gone further and actually called it a conspiracy by the establishment to retain the status quo and the privileges it offers. This conspiracy logic overlooks the fact that the court had actually given the government an opportunity to get the NRO ratified from the parliament and after failure, the government did not even contest it in the court. Another point which is being overlooked is that the present judiciary was not imposed by the establishment but was actually restored through a popular movement …

… In Pakistan this problem is even more severe as most of the parliamentary seats are from rural area and there the politics is based on completely different issues. A quick look at the respective rural urban political profiles will attest it. Elections are not fought on ideology in rural areas or on policy related political issues but on the strength of candidates which explains as to why parties (both of left and right) field strong candidates. These individuals are often in a position of winning independently also. The basic criterion of a strong candidate is his wealth, political clout, influence on the local bureaucracy and his ability to successfully push through local demands such as jobs, sanitation, construction of small roads, arbitration of local disputes etc. When rural voters appraise an incumbent, they are actually appraising him in the light of his performance strictly at constituency level. Thus votes won in the rural areas should not be interpreted as endorsement on national policy issues or for that matter approval of excesses. THIS IS A VERY SIGNIFICANT POINT WHICH IS OFTEN COMPLETELY OVERLOOKED OR AT TIMES JUST NOT SPOKEN FOR THE SAKE OF BEING POLITICALLY CORRECT. This dichotomy between rural and urban politics thus does strengthen the case that democratic process alone cannot provide full accountability or ensure that executive wont indulge in excesses. The notion that people alone are the best arbiters may be politically appealing thing to say but ignores a reality.

It is in fact because of these gaps that judicial activism is gaining strength in urban areas. Let’s not forget that the present judiciary, has not been imposed by the establishment but was brought into office due to a popular movement in the urban centers of Pakistan. We can call it a media generated hype as much as we like but hypes alone do not explain people filling up the streets and getting their heads cracked just for bringing a droopy eyed person back into power. It may have been an urban based movement but obviously it originated because there were some perceived gaps in the accountability process of the executive.

GIVEN THE ABOVE SCENARIO, JUDICIAL ACTIVISM MAY NOT BE A DERAILING FORCE PROVIDED IT DOES NOT GO INTO EXCESS. In fact limited judicial activism may keep democratic evolution on proper track and ensure that chaos and excessive behavior does not develop. Historically such behavior has always resulted in intervention from the armed forces. Compared to that prospect judicial activism is a much better alternative provided it does not go overboard. Pakistan needs democracy but a sustainable democracy underpinned by separation of powers and a multifold accountability structure.

One thing which the judiciary has to avoid doing is to start declaring politicians ineligible. Miss Asma Jehangir does have a very valid point that Judiciary should be independent but once it has asserted its independence it should not touch eligibility criteria under section 62 and avoid undertaking micro management. Independence is not over interference. Judicial activism can only be effective, it is sparsely used. Media needs to show maturity. Over hyping judicial activism is going to be counterproductive. Political parties need to show maturity and rather than branding the verdict as conspiracy against democracy, should avoid the collision course. The rise of judicial development can potentially lead to stable democracy provided the stakeholders show restrain and maturity. (full text).

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