Judiciary’s new role

Editorial The News carried here as a re-post.

The headline is slightly misleading. Here, the judiciary’s ‘new’ role is being juxtaposed with its old role that lasted for, say, the first sixty years of the country’s existence. If one were to pinpoint a high profile case that kickstarted this activist role of the judiciary, it would have to be the nullification of Pakistan Steel Mills privatisation in 2006.

Prior to that, the judiciary exercised restraint in matters that did not fall under its purview; not even in the name of ‘fundamental rights’ or ‘upholding the Constitution’.

The Lawyers’ Movement that started with the immediate goal of getting the judges restored upheld the long term lofty ideal of “independence of judiciary”. With the judges restored to their rightful position, somewhere in between, the ideals got muddled; the independence of judiciary, henceforth, became synomous with an activist judiciary.

This image was reinforced by a gung ho media leaving no space for the philosophical debate about what constitutes independence of judiciary. Independence is essentially tied up with the concept of separation of powers and can only be ascertained by judicial restraint.

Yet, the people of this country were engaged in a debate of another kind. Here, the supporters of an active judiciary, helped immensely by the media, tried to make the argument that in case of total failure of the executive, which they established had conclusively happened, some institution has to take action. And judiciary was the best placed to perform the executive’s, and the legislature’s, role, they claimed.

This was and is a faulty suggestion that falls on slippery terrain. The Constitution does not provide room for any such mechanism. Unfortunately, this was made to appear as a dominant, or at least a loud, discourse.

It did not just stay at the level of discourse; the activist judiciary got itself entangled in everything the classical model would warn it against. The immediate consequence is a jurisprudence that is impacting the country in a very serious manner. This is especially true for the judiciary’s interference in strictly economic and policy matters that has literally put the state’s credibility at stake internationally.

Separation of powers not just entails that one organ will not interfere in the sphere of another organ; it also means that each organ will strengthen itself to an extent that no other organ dares interfere in its sphere. This is a very fine line. Our judiciary has interpreted it to mean that no other institution shall be involved in the appointment or removal of judges (though this has its roots in the al-Jehad case). Again, this is something unique to Pakistan; no other country in the world precludes the role of executive and/or legislature in the appointment and removal of judges in the manner that we have. Not even India.

Judiciaries all over the world work on the strength of their moral authority while force and financial power rests with the executive. They cannot expect to enjoy that moral authority if they keep giving decisions that cannot be implemented. This is what is happening in Pakistan. With each decision that does not get implemented, they start losing that moral authority. If there is no exercise of restraint as the Constitution desires, other institutions may decide to put their foot down. The judiciary should not let that happen.

 Original posting link: http://jang.com.pk/thenews/dec2012-weekly/nos-23-12-2012/spr.htm#3

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  • Kardar  On January 1, 2013 at 7:41 am

    You are right. “Judiciaries all over the world work on the strength of their moral”

  • Hasan  On January 1, 2013 at 7:56 am

    they shd 1st do JUSTICE to their original ROLE & then look for NEW ONE

  • Ghias uddin Babar  On January 1, 2013 at 12:04 pm

    In the past 65 years of our history, democracy has not been able to flourish or in a way did not get sufficient chance to establish its roots and grow. One could say that probably it was not permitted/granted.There have been a lot many ups and downs on our political landscape.This got to be realized by sister institutions. Democracy does not mean Treasury Benches only – it very much includes Opposition. Let them inter act, sort out democratic system and the procedures related to it. So that with the passage of time they learnt to sit, crawl, walk and run, over a period of time.It would in a way add “positivity” to the over all environment in the country in shape of mutual respect and regards amongst all important institutions. Just like some infant when he makes effort to sit, crawl,walk. He falls down, gets up and after few attempts gets going. Unfortunately no one will grant other this opportunity (in our country) to grow at a natural pace. Before some institution had fully grown or matured to function – it would be declared unfit and diagnosed as beyond treatment and rejected. If it still wanted to show some improvement, it would not be permitted a smooth sailing. Was it an extension of “male dominance psyche” in our country, which is demonstrated amongst our leading institutions. What happens that in the long run our systems suffer and on the whole at the end of the day our nation/country suffers. This editorial is well thought out and timely message to all concerned.

  • Shmuel Almagor  On January 1, 2013 at 12:07 pm

    This matter, of an “activist judiciary”, is very familiar to all Israelis.
    During his time as President of the Supreme Court (1995-2006), Aharon Barak advanced a judicial activist approach, whereby the court was not required to limit itself to judicial interpretation, but rather was permitted to fill the gaps in the law through judicial legislation at common law.
    In our case, I believe Barak was motivated to activism by the absence of an Israeli Constitution.

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