Reconsidering the judicial revolution

The short version is that the judicial revolution was a good step forward for this country. In practical terms though, our legal system is defunct. And if the judiciary does not recognise limitations on its own powers, it will hurt the very democracy it now claims to protect.

By Feisal Hussain Naqvi

What was the point of the judicial revolution? Was it to restore one man to office? Or was it to establish the independence of the judiciary? Either way, how would you assess the revolution from today’s perspective?

This was the question posed at a recent roundtable hosted by the Human Rights Commission of Pakistan. And predictably, it set off a small storm amidst the lawyers gathered.

I don’t intend to summarise the many viewpoints offered but the plurality of opinions certainly forced me to reconsider my thoughts. So, here goes.

To begin with, it is a considerable over-simplification to say that there was “one” judicial revolution: at a minimum, there were two distinct phases of the revolution. The first phase started on March 9, 2007, when Musharraf attempted to fire the Chief Justice and ended on July 20, 2007, when the CJ was restored by order of the full Supreme Court. The second phase started on November 3, 2007 and ended on March 17, 2009, when the CJ and the 23 other judges who had not taken oath in the interim were restored. Each of those phases was distinct and motivated by a different goal.

The second point is that trying to figure out the point of a revolution is inherently problematic. A revolution is like a tsunami travelling through a normally placid sea of public consciousness. Different people participate for extremely different reasons. The assumption that people participated for a common set of reasons is, therefore, not justified.

Having hedged all my bets like a good lawyer, let me now give my two cents worth.

To begin with the obvious, the judicial revolution has indisputably changed the mindset of the judiciary. Prior to March 9, 2007, taking oath before a military dictator was seen by judges (and lawyers) as an occupational hazard. The assumption was that the judiciary had a job to do and that job needed to be done irrespective of whether or not the regime was democratic. The judiciary, therefore, did not see itself as the defender of the democratic faith but rather as a group of professionals entrusted to do a particular job, just like dentists or school teachers.

That assumption is no longer true. If and when we have another coup, I expect the vast majority of judges to resign. And if the superior judiciary quits en masse, it is quite possible the subordinate judiciary will follow suit.

The second change relates to the public perception of the judiciary. Before the judicial revolution, the average Pakistani did not much distinguish between the judiciary and the rest of the government. If anything, judges were seen as a specialised form of the bureaucracy, basically just the establishment in black robes.

Now, the average Pakistani distinguishes very clearly between the judiciary and the establishment. If anything, he now not only recognises the judiciary as a fully autonomous arm of the state but also looks to it to save him from the establishment as well as the legislature, the feudalocracy, his local SHO and everybody else in between. More importantly, the change of attitude has affected the judiciary as well. Fifty years ago, judges identified very clearly with the rulers; today, they themselves are instruments of the masses working against the state.

These are momentous changes but their consequences will take decades to unravel. As Chou En Lai once wryly remarked in relation to the French Revolution of 1789, “It is too soon to say.” With that caveat, the second change is particularly important.

In a democracy, the essential basis of the government’s legitimacy is that it governs according to the expressed wish of the people, i.e., a constitution. Since a constitution itself does not speak, the only guarantee of the integrity of this original contract is the judiciary. And when that guarantee is worthless, the value of the contract itself disappears.

Let me restate what I just said in simpler terms. A constitution is an agreement between the people who vote and the people who exercise power. The ultimate safeguard of that deal is supposed to be the people themselves because they get to vote out the deal-breakers. Except, of course, that in Pakistan they don’t get to vote that often and when they do, the system is rigged because of the massive disparities in power. For all practical purposes, the only guarantor of the constitution is the superior judiciary. For people to believe in democracy, people need to believe in the judiciary. And now they do.

I’m not trying to pretend here that the days of wine and roses are upon us. The judiciary may now be able to play a different institutional role in Pakistan but in terms of its professional obligations, it remains woefully deficient. Put bluntly, the legal system of Pakistan is broken and the responsibility for fixing that mess lies with the judiciary. Yes, I know, the various law ministries are in theory equally responsible, but let’s not kid ourselves. The stagnation in our courts will be resolved through policy changes initiated by the superior judiciary, or not at all. And if the new National Judicial Policy is anything to go by, nothing will change.

A problem of a completely different dimension lies in the judiciary getting carried away with its new role. Yes, judges are the guardians of the constitution. But there is a clear line dividing what judges do from what politicians do, and our judges seem to be spending too much time on the wrong side of that line. Having said that, one must also recognise that the Supreme Court did hold off on striking down the 18th Amendment (thereby recognising at least some limits on its powers) and that the initial suo motu mania seems to be subsiding.

Let me try and put all these fragmented thoughts together. The short version is that the judicial revolution was a good step forward for this country. In practical terms though, our legal system is defunct. And if the judiciary does not recognise limitations on its own powers, it will hurt the very democracy it now claims to protect.

 

This column appeared first in Pakistan Today on 28 December 2010.

 

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