‘Restraint’ must follow ‘activism’

By Khaled Ahmed

Expansion of judicial power is welcome, but one must not forget that there is also such a thing as judicial excess

On 30 February 2012, the Supreme Court (SC) has allowed former Pakistani ambassador to US Husain Haqqani to travel abroad after an important witness in the ‘memo’ case finally refused to present himself at the judicial commission set up by the Court. This is the first sign of gradual erosion of the charges that were finally to target President Zardari as the originator of ‘treason’ against the Pakistan Army through an American businessman, Mansoor Ijaz.

Analysts believe the Court has been let down by the other parties interested in crucifying the PPP leader and sending the PPP government packing before its term. Nawaz Sharif may have stitched up a deal with Zardari over the timing of next general election; and the Army may have been appeased through Zardari’s sacrifice of Husain Haqqani as burnt offering to the generals. At the time of writing, Barrister Aitzaz Ahsan was defending Prime Minister Gilani against a charge of contempt and persuading the honourable Court to relent and be satisfied with a belated letter to the Swiss authorities.

The Supreme Court of Pakistan is hearing two cases – and a third one is coming up later in the month – that threaten to expose it to lack of judicial restraint. At home, internecine politics and the besiegement of the ruling party give it the ballast with which it can keep going if it wants. But the lawyers’ movement – which deluded it into feeling that it was backed by ‘the nation’ rather than the Constitutionis split at the top, the vanguard of its leaders now skeptical of its steamrollering activism. Internationally too it is now facing isolation.

On January 25, 2012, the International Commission of Jurists (ICJ) expressed its concern over the convening of the inquiry commission for the memo affair, saying ‘there are legitimate concerns‘ that, by neglecting the rights of the ex-ambassador Husain Haqqani, the Court ‘may have overstepped its constitutional authority and that this action could undermine the ongoing Parliamentary inquiry. The ICJ supported the ousted Supreme Court and consistently accepted its activism in a national environment of extreme dereliction and corruption in state institutions topped by the incumbent executive.

Sitting inside Pakistan and bristling over country’s eroding sovereignty, it is easy to be isolationist and ignore the ICJ warning. Those among the top lawyers – Asma Jahangir, Munir A Malik, Ali Ahmad Kurd, Aitzaz Ahsan – who have decided to caution judicial restraint after a bout of activism so intense it looked like revenge, are being cursed by the mainly conservative and bucolic (mufassil) lawyers’ community as well as the media clearly bent on getting rid of a largely dysfunctional PPP government.

The ‘national consensus’ is chiding the Supreme Court to review just anything under the sun as the forum of last resort. There is no forum higher than the Supreme Court if you feel aggrieved. Except that the Court takes an objective view of its authority and a realistic view of the fallibilities of a third world state cut to pieces by terrorism. It is more difficult to convict a known terrorist in Pakistan than the sitting prime minister.

A backward look at the ‘activist’ Supreme Court of India should be instructive. Just like Pakistan’s Supreme Court with its background of bending like a reed to military’s provisional orders (PCOs), the Indian Supreme Court submitted before the political power expressed through Prime Minister Indira Gandhi’s emergency. After the emergency was lifted in 1977, the Supreme Court became assertive and, by the early 1980s, it began to lean heavily on ‘public interest litigation’ through a wholesale use of the suo motu option. In Islamabad, the Supreme Court had already displayed its emotional vulnerability with regard to economic issues when it undid the privatisation of the Steel Mill in Karachi. It was bound to over-reach.

AG Noorani wrote in Dawn (15 Oct 2008): ‘Expansion of judicial power is welcome. But one must not forget that there is also such a thing as judicial excess’. He then refers to Supreme Court of the United States getting out of hand and forcing President Roosevelt to think of ‘packing’ the Supreme Court to wean it from judicial excess. The ‘packing’ did not take place but the Court was duly chastened and returned to its former posture of ‘restraint’.

The great American judge Justice Oliver Wendell Holmes who had dissented from the above-mentioned ‘activist’ court in 1905 on an economic matter, said: ‘This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory; I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty’. Pakistan’s Supreme Court so far has hardly any dissenting judges on its benches, which raises concern.

After the Indian Court became overstretched in its ‘activism’ voices were raised against it. Madhav Godbole’s voluminous book The Judiciary and Governance in India (Rupa & Company, New Delhi 2009) has President APJ Abdul Kalam saying in 2005: ‘What is required is a conscious realisation of unseen boundaries that cannot be traversed without causing embarrassment and even injustice to the democratic system and the rights of its citizens’ (p.300). Prime Minister Manmohan Singh followed with another warning to the judiciary in 2007: ‘All organs, including the judiciary, must ensure that the dividing lines between them are not breached’ (p.301).

The effect was salutary. The Indian Supreme Court called off its activism, sheathing its suo motu sword, and stepping back into the fastness of ‘judicial restraint’. Aitzaz Ahsan, lawyer for Prime Minister Gilani facing possible contempt proceedings at the Supreme Court, told a TV channel that his main character trait was restraint in the face of extreme situations. This self-description could also be applied to the conduct of the Supreme Court which sees no constitutional red lines being crossed by the Army – as it runs foreign and national security policies – and accepts the Memo Case for breach of human rights.

Courtesy: The Friday Times


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