Judicial supremacy or Judicial dictatorship?

By Khaled Ahmed

We have to wait till the Chief Justice and his fellow judges overreach themselves and finally come to the conclusion that moderation is the only path to tread in this imperfect Third World environment

On 7 July, 2012, Chief Justice of Pakistan Justice Iftikhar Muhammad Chaudhry said that Article 8 of the constitution empowered the Supreme Court to strike down any legislation which encroached upon the basic rights of the citizens. He said this while speaking at a ceremony for newly enrolled advocates at the Supreme Court’s Karachi Registry.

He sought to debunk the universally accepted supremacy of parliament in Pakistan by adding that ‘even in the United Kingdom itself, the doctrine of supremacy of Parliament is now seen to be out of place’. Quoting a note written by Justice Jawwad Khwaja, he said, ‘It is time, after 65 years of Pakistan’s independence, that we freed ourselves from the shackles of obsequious intellectual servility to colonial paradigms and start adhering to our Constitution’.

Parliament in Pakistan is going through its moment of weakness not because the Constitution wants it weak but because the political parties in it are at each other’s throat. The two big parties the PPP and PMLN are at loggerheads, the latter threatening to launch long marches in addition to staging fisticuffs on the floor of the National Assembly. Out on the streets, the Chief Justice and his fellow judges in the Supreme Court are being supported by aggressive and increasingly vandalistic lawyers, beating up the police and slapping judges in the lower courts.

Parties that stayed out of the 2008 elections also consider the parliament wrongly composed, rebuking the PMLN for sitting inside it while it should be out on the road demanding new elections. The religious parties are committed to the Chief Justice because of his ‘basic structure’ doctrine which encourages the clergy to assert their alternative jihadi vision of the state. They are hopeful that Chief will continue to the trend set in the way the Court has dealt with Lal Masjid, a known stronghold of Al Qaeda before it was dismantled in 2007.

The media, silently obeying the Al Qaeda diktat of non-reference to terrorists and their affiliates in the madrassa network, is one of the pillars of the Chief’s strength. Conservative like the judiciary, it is subjecting parliament and government to tough one-sided scrutiny. In Balochistan, terrorists demanding independence are on the side of the Chief Justice; the ‘nationalists’ in Sindh want him to take cognizance of the way the PPP-MQM combine is treating them, knowing full well that the Court is punitively inclined towards the federal government.

The only relief is the opinion in the English-language press where the Chief Justice is frequently challenged on points of law. Those lawyers who dare criticise the Court’s conduct are frequently threatened and the threat could come equally from the state or the terrorist network affiliated with Al Qaeda.

There is no argument with the fact the Supreme Court is a constitutional arbiter and can strike down laws but it is an arbiter without accountability. Who will judge the Chief Justice’s supremacy? His court suffers from a lack of restraint and that is being noted in countries that he refers to having broken the shackles of supremacy of parliament. He is himself to blame for this swing of opinion from the judiciary to the executive which the international opinion now thinks is being bullied by him. His son’s scandal which should have compelled him to resign pending investigation has actually strengthened the ranks of those who want him in place to finally get rid of the executive.

In March 2011, Supreme Court Bar Association President Asma Jahangir said the judiciary under Chief Justice Iftikhar Muhammad Chaudhry was becoming judicial dictatorship, as reflected in the Supreme Court’s orders on the ‘National Accountability Bureau chairman and judges’ extension cases’. Ms Jahangir in 2012 lives under terrorist threat and the Bar under a new president is behaving more carefully. Nobody wants to die.

The Supreme Court in India went through the same kind of mood swing but began to return to normal after 2010 when some judges thought that the Court’s hyper-activism had gone too far. Tehelka newsmagazine (TFT 9 Feb 2012) reported that in a public lecture, the current Chief Justice SH Kapadia in March 2011 acknowledged that judges imposed their ‘values’, ‘likes’ and ‘dislikes’ on the society. He said: ‘The judges should not speak anything beyond the principles of a particular case. Let us not give lectures to society’.

After that the number of cases of Obiter Dictum certainly went down in India but the clash between the judiciary and the executive continued. In the same month, the SC quashed the appointment of the Chief Vigilance Commissioner PJ Thomas due to pending corruption cases against him.

In January 2012, the court struck down the government’s decision to impose $2.2 billion tax on telecom giant Vodafone. Various decisions of the green bench of SC which looked into environmental cases were often at variance with the government’s view. The prosecution in the 2G telecom scam case itself gained pace after the Supreme Court took it over and started directly supervising the Central Bureau of Investigation.

There has been a growing clamour in India about the accountability of judges, especially from the elected representatives. ‘They behave like gods’, ‘They are not responsible for any of their actions’, ‘What about judicial corruption’ – Indian MPs and ministers were heard complaining in hushed voices. The government tried to bring in the judicial accountability bill. Selection of judges to Indian Supreme Court is perhaps one of the non-transparent processes in the country.

(NB: The judiciary in India is/was activist in very different conditions. The executive was not hounded by a virtually absent writ of the state. The executive and the courts are were not forced to live under intimidation from highly organised terrorists funded from abroad and domestically through kidnappings and bank robberies. And in India judiciary was not embroiled in the politics of toppling incumbent governments before their time.)

The diagnosis in India is the same: weakening credibility of the political class. Tehelka Magazine concludes: ‘It is not just the judiciary; even civil society has been openly clashing with politicians and even questioning the authority of Parliament and the elected government’. In Pakistan we have to wait till the Chief Justice and his fellow judges overreach themselves and finally come to the conclusion that moderation is the only path to tread in this imperfect Third World environment.

Courtesy: The Friday Times


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