Judicialization of Politics in Pakistan

After the Second World War, many liberal democracies ceded power to judiciary for enforcement of human rights. In Pakistan’s Constitution, we too empowered our superior courts to secure civil liberties. As was held in the Al Jihad Trust case reported as 1990 SCMR 1379:

“The Fundamental Rights enshrined in our Constitution in fact reflect what has been provided in some of the above quoted Universal Declaration of Human Rights. It may be observed that this Court while construing the former may refer to the latter if there is no inconsistency between the two with the object to place liberal construction as to extend maximum benefits to the people and to have uniformity with the comity of nations…”

For the purpose of this essay, I would elaborate on the entrenched human rights as articulated in the Constitution which the superior courts are empowered to protect. Chapters I & II of Part II of the Constitution incorporate fundamental rights and directive principles of policy. Austin called such chapters: “Conscience of the Constitution”. They have been acknowledged widely as occupying place of pride in our Constitution. The directives contained in Chapter II may not be directly enforceable in our courts but serve as guiding principles in protecting the fundamental rights enshrined in our Constitution. As such, the directive principles of policy in our scheme of the Constitution must conform and operate as subsidiary to the fundamental rights guaranteed in Chapter I of Part II, otherwise the protective provisions of the said Chapter would be a “mere rope of sand”.

Mr Justice Anwarul Haq in the case of Manzoor Elahi vs. Federation of Pakistan reported as PLD 1975 SC 66 held as under:

“Articles 3, 37 and 38 of the Constitution juxtapose to advance the cause of socio-economic principles and should be given a place of priority to mark the onward progress of democracy. These provisions become in an indirect sense enforceable by law and thus, bring about a phenomenal change in the idea of co relation of Fundamental Rights and directive principles of State policy. If an egalitarian society is to be formed under the rule of law, then necessarily it has to be by legislative action in which case it would be harmonious and fruitful to make an effort to implement the socio-economic principles enunciated in the Principles of Policy, within the framework of the Fundamental Rights, by enlarging the scope and meaning of liberties….”

The Supreme Court under Article 184(3) of the Constitution of Pakistan, like the High Courts under Article 199(1)(c), can pass orders as may be appropriate for the enforcement of any of the fundamental rights conferred by Chapter 1 of Part II. Article 184(3) does not have the clogs of Article 199 of the Constitution. Under Article 184(3) there are no trappings of sub Articles 1(a) and 1(c) of Article 199. However, the power under Article 184(3) can only be exercised if element of “public importance” is involved in the enforcement of fundamental rights. The jurisdiction under Article 184(3) is remedial in character and exercise of the jurisdiction is conditioned by three pre-requisites: there is a question of public importance; such question involves enforcement of the fundamental rights; and fundamental rights to be enforced are conferred by Chapter 1, Part II of the Constitution.

Article 184(3) does not on the plain reading go so far as to show who has the right to approach the Supreme Court nor does it say by what proceedings the Supreme Court may be so moved or if the proceedings under the said Article are confined to the enforcement of the fundamental right of an individual only or they extend to the enforcement of the rights of a group of class of persons whose rights are violated. In the Supreme Court case of Ms Benazir Bhutto vs. Federation of Pakistan and another, reported as PLD 1988 SC 416, these issues were considered. It settled the debate, inter alia, on the rule of standing i.e. only a person wronged can initiate proceedings of a judicial nature for redressal against the wrongdoer. The Court held that the rule of standing does not apply under Article 184(3). Ergo, in contradistinction to Article 199 of the Constitution, the rigid notion of “aggrieved person” is not implicit in Article 184(3). The Court further held that Article 184(3) outlines what proceedings should be followed, therefore, they must be judged in the light of the purpose, that is, the enforcement of any of the fundamental rights.  The Court ruled:

“If the framers of the Constitution had intended the proceedings for the enforcement of the Fundamental Rights to be in a strait jacket, then they would have said so, but not having done that, I would not read any constraint in it. Article 184(3) therefore, provides abundant scope for the enforcement of the Fundamental Rights of an individual or a group or class of persons in the event of their infraction. It would be for the Supreme Court to lay down the contours generally in order to regulate the proceedings of group or class of actions from case to case.”

The powers to pass appropriate orders under Article 184(3) have to be read in conjunction with Article 187(1) of the Constitution that provides for Supreme Court to issue such directions, orders or decrees as may be necessary for doing complete justice. This is a unique power and has tremendous bearing on the proceedings initiated under Article 184(3) of the Constitution. Mr Justice Muhammad Afzal Zullah in Darshan Masih’s case reported as PLD 1990 SC 513 expanded on the multifarious considerations the Supreme Court needs to consider before passing orders, directions or decrees under Article 184(3):

“Treating with public interest litigation requires more than legal scholarship and a knowledge of textbook law. It is of the utmost importance in such cases that when formulating a scheme of action, the Court must have due regard to the particular circumstances of the case, to surrounding realities including the potential for successful implementation and the likelihood and degree of response from the agencies on whom the implementation will depend. In most cases of public interest litigation, there will be neither precedent nor settled practice to add weight and force to the vitality of the Court’s action. The example of similar cases in other countries can afford little support. The successful implementation of the orders of the Court will depend upon the particular social forces in the back drop of local history, the prevailing economic pressures, the duration of the stages involved in the implementation, the momentum of success from stage to stage, and acceptance of the Court’s action at all times by those involved in or affected by it.”

The powers of the apex Court to enforce the enshrined fundamental rights became – to put it mildly, controversial post-2007. The Court deliberated on a number of issues with little or no deference shown to other arms of the Government. The matters included, inter alia, failure of government to have proper control on the prices; particularly of articles of daily use and essential commodities (Suo Motu Case No. 10 OF 2007 reported as 2008  PLD  673 Supreme Court), vires of National Reconciliation Ordinance, 2007 (PLD 2010 SC 265), promotions of officers of various occupational groups from BS-21 to BS-22 (2010 SC MR 1301), closure and suspension of broadcasting and transmission of media houses (2010 SCMR 1849), Hajj Scam of 2010 (Suo Motu Case No. 24 of 2010 reported as 2011 P L C (C.S.) 1489), issues concerning housing schemes (2011 PLD  163 and Suo MotuCase No. 11 of 2011), contamination of water in Mancher Lake (Suo Motu Case No. 10 of 2010 reported as 2011 SCMR 73), law and order situation in Karachi (Suo Motu CaseNo. 16 of 2011 reported as PLD 2011 Supreme Court 997), arrangements needed to be made by the Election Commission to organize and conduct the elections in accordance with law (PLD 2012 Supreme Court 681), violation of Public Procurement Rules, 2004 by National Insurance Company Ltd (2012 P L C (C.S.) 394), the Speaker’s decision not to refer the question of disqualification to the Election Commission after the Prime Minister’s conviction by the 7-member Bench of the Supreme Court (PLD 2012 SC 774), Appointments to public offices such as Oil & Gas Regulatory Authority (2012 PLD SC 132) and Securities and Exchange Commission of Pakistan (2013 SCMR 1159), energy crisis and alleged corruption in rental power plants etc. (2012 SCMR 773) and the objective criteria for promotion to make a civil servant an honest officer and free from political pressure (Const. Petition No.22 of 2013).

The afore-referred cases drew mixed response from the legal fraternity and media alike. Judicial activism became the catch-phrase. This was the time period when the extended scope of jurisdiction under Article 184(3) reached its optimal. The Supreme Court actively engaged in reviewing administrative acts that it considered were violative of the fundamental rights. In all fairness, the trend of judicial activism is not exclusive to Pakistan only. The US saw two particularly pronounced phases of judicial activism (once called as judicial supremacy or government by the judiciary). The first one began in 1890s and lasted till 1935-6. It was called the age of rampant judicial activism. The next phase, popularly called the era of the Warren Court judicial activism continued through 1962-69 and is accredited for both expanding the scope of fundamental rights and suspect classes.

The UK once dictated by the norms of judicial restraint underwent a radical change in its approach in the 1960s. The superior courts became far more active in reviewing the administrative acts. The Bentham Club Presidential Address of Lord Edmund Davies is perhaps reflective of that change. He said: “By the act of interpretation they [judges] are themselves making law”. For him judicial activism was synonymous with the law-making activity of the judges. Lord Edmund Davies in the said Presidential Address after citing the cases went on to say “…how enormous is the debt owed by this country to the judicial activism of Lord Denning…”

India also had its phases of judicial activism. The first phase that began in late 1970s and continued through 1980s, in essence, focused on rights of disadvantaged sections of society and relief was primarily sought against the actions and omissions of the executive in enforcing the fundamental rights. The Supreme Court became the institutional defender of the rights of the disadvantaged and issued the government appropriate directions to redress their grievances.

The second phase that began in 1990s saw a surge in the issues and included concerns vis-à-vis environment, corruption and accountability of the ruling regimes, education, harassment at workplace, fair market practices in the industries etc. The judiciary also intervened to: identify the legislative gaps (Vishaka vs State of Rajasthan AIR 1997 SC 3011) and enforce fundamental rights against private individuals (Bodhisattwa Gautam vs Subhra Chakraborty AIR 1996 SC 922). This phase also saw the Supreme Court taking strict action against non-compliance of its orders against civil servants and even went as far as to monitor the investigative agencies. The second phase thus transgressed beyond the chartered territory of public interest litigation despite the clear instructions contained in The handbook of the Indian Supreme Court: ‘‘Public International Law [PIL] is meant for enforcement of fundamental and other legal rights of the people who are poor, weak, ignorant of redressal system or otherwise in a disadvantageous position, due to their social or economic background.” The third phase began at the turn of century and only saw a further expansion in issues raised under public interest litigation. Judicial activism bordered on judicial excessivism. The over-reach of judiciary far outweighed the under-reach of other branches of the government. However, as time has gone by, collateral trend of judicial restraint also seemed to have resurfaced.

The second and third phases in India are similar to judicial trends in Pakistan. If post-2007 was the period of hyper judicial activism, then post-2013 that trend ebbed. Judicial restraint had seemingly carried the day until the 17 Member Bench of the Supreme Court in the case of District Bar Association, Rawalpindi and others (2015 PLD 41 SC) rejected the challenges thrown at 18th and 21st Constitutional Amendments. Significantly though, the Court recognized the variant of basic structure to our Constitution. Writing for the majority, Justice Azmat Saeed wrote: “There is an inherent integrity and scheme to the Constitution evidenced by certain fundamental provisions, which are its Salient and Defining Features.” The parliament now while exercising its constituent powers cannot repeal, abrogate or substantively alter the provisions that are the Constitution’s “salient” or “defining” feature.

Its significance is three folds: Salient or defining features is effectively the same as doctrine of basic structure to Constitution; secondly it places an inherent check on the power of the parliament to amend the Constitution; and thirdly the superior Courts can now examine and strike down a Constitutional amendment on the basis of salient or defining features. Who finds salient or defining features? The honourable judges.  There is little in the text of the Constitution to suggest what is or isn’t a salient or defining feature.  Judges who dissented on basic structure made such textualist arguments. Majority that justified the basic structure relied principally on the Court’s precedents. The majority opinion also stated that it was not necessary to prescribe the complete scope of salient features of our Constitutional scheme and confined itself to the features that were relevant for the adjudication at hand. Apart from, “Democracy, Parliamentary Form of Government and Independence of the Judiciary”, the Islamic character of the Constitution as enshrined in Article 2A has also been recognized by Courts as defining or salient feature of the Constitution – but more could be added. In future, judges may also refer to the speeches in the constituent assembly to ascertain the intent of the framers in arriving at salient or defining features or judges could simply rely on the chequered constitutional history of the country to invent one.

This is too much power with the non-elected body – reminiscent of medieval monarch. For judiciary to review a change in the Constitution, the scope of which travels well beyond procedural challenges, on the basis of subjective approach of basic structure; doesn’t it make our apex Court a supra constituent body? Chief Justice Saqib Nisar while he concurred with the conclusion of majority disagreed on basic structure and cautioned: “If we were to introduce such a doctrine into Pakistan would not critics be entitled to speculate whether the nation has changed a military autocracy for a judicial autocracy, with but a brief interval for an improperly functioning democracy.”

The Indian Constitution in a series of judgments during and post Indira Gandhi’s term, starting from Kesavananda Bharati’s case, established the basic structure doctrine within India. The purpose there, apparently, was to protect the Constitution from Indira’s misguided ambitions. We seemingly supplied the same context here. In our context, trust deficit in politicians is understandable. In our context, the role of apex Court championing the cause of democracy is also questionable.  So the Indian context, absent any express provisions in the Constitution itself, that describe certain features as salient, is unhelpful. As a Constitutional principle, in democracies judicial review is a limited check, ancillary only to the political processes, to fetter parliament or executive’s power on the touchstone of the Constitution. But the power to review and even strike down Constitutional amendments, that too on the basis of what judges think is or ought to be the basic structure of the Constitution, completely changes the power dynamics of coordinate branches. There should be a greater disinclination, even distrust, in concentrating too much power in one non-elected coordinate branch

The judges while deciding the challenges thrown at 21st and 18th Constitutional Amendments, played the long game, and reserved for the Court, a greater role as the final arbiter to decide legality of amendments to the Constitution. In addition, to the traditional tests such as corum non judice, the apex Court would now apply the doctrine of basic structure. The judgment in District Bar Association ushered in a new era of extension of judicial authority with a chilling impact on separation of powers. This marked the beginning of the second phase of judicial activism as our apex Court created a power for itself that had until now not existed. The consequence of this is that the parliament’s Constituent powers have been significantly curtailed – what is left is a mere shadow of its former powers despite the command of Article 239 on the contrary.

This change in power dynamics was critical as the Court quickly ventured into its third phase of judicial activism after December, 2016. In 2017 alone, the Chief Justice of Pakistan took 34 suo motu notices under Article 184 (3) of the Constitution. These notices pertained to, inter alia, torture and harassment of women and children, practices of vani and swara, environmental pollution, sale of substandard food items, hikes in fee by private schools and colleges, VVIP protocol, and conditions of government hospitals, murder of Mashal Khan, Tayaba torture case and the poor conditions of Katas Raj temple.

No doubt, these issues were mainstreamed. But it is not the role of the Supreme Court to mainstream certain issues or push them into public discourse through original jurisdiction. The recent wave of judicial overreach, apart from placing Supreme Court in the agenda setting, has also collaterally glided it into a political thicket. Navigating through this haze remains a challenge. As we learned, the hard way, last time; such judicial overreach, may generate public interest momentarily but in the long run, the consequences are severe as public confidence in the institution is undermined.

The Supreme Court in its third phase has employed its original jurisdiction unsparingly, on the sole pretext, it seems, that vacuum created by inaction or omission of the executive must be filled by the judiciary. This vacuum theory runs contrary to the Constitutional principle of the separation of powers, that limits the judicial authority, notwithstanding the perceived vacuum (as determined by the judicial officers), under our scheme of the Constitution. Judicial review is not guided by any executive vacuum but by principles enshrined in the Constitution. The idea that superior judiciary must act in its original jurisdiction because the executive fails to do its job is simultaneously too broad and too narrow. It provides unprecedented justification for the Supreme Court to interfere in all matters reserved for coordinate branches. On the other hand, it over-simplifies, even trivialises; the great, complex and ever-unfolding exigencies of running the government. With restraint as the guiding principle, original jurisdiction ought to be employed sparingly, only for enforcement of fundamental rights of the people who are poor and weak.

Judicial activism has been rightly termed “judicial creativity” by Justice (Retd.) Mr Fazal Karim. It was the outcome of valiant efforts of “that invincible warrior” Lord Denning, the doctrines of “promissory estoppel” and “legitimate expectation” became part of the English jurisprudence. A good example of judicial creativity in Pakistan is the famous case of Ashraf Tiwana reported as 2013 SCMR 1159. It was a constitutional petition under Article 184(3) of the Constitution challenging the appointment of Chairman, Securities and Exchange Commission of Pakistan for the want of transparency, objectivity, due diligence and fairness in the selection process. The Court also delved on issues; inter alia, statutory discretion, scope of powers under Article 184(3), selection process for the appointment of Chairman, termination simpliciter of contract employees etc. The Court reasoned that SECP being apex regulator in the economic sector in Pakistan had wide mandate affecting economic life of people at large. More specifically, placing reliance on the Muhammad Yasin case (PLD 2012 SC 132), the court considered the appointment of its Chairman and Commissioners as matter of public importance with reference to the enforcement of fundamental rights. It handed down a well-reasoned judgment, a hallmark of judicial creativity, which ushered the jurisprudence under Article 184(3) of the Constitution into a new era. The judgment has been widely lauded and the principles laid down therein on host of issues have been followed by the courts subsequently, including the Supreme Court of Pakistan, in number of cases.

At the same time, however, the power of judicial review is not unqualified or unlimited. The authority of the superior courts rests on moral sanction, which is enabled by sustained public confidence. If the superior courts clash with political institutions or appear to be getting entangled in political controversies, then the courts, a symbol of detachment, do not inspire confidence of the public. If courts tend to think they must intervene and review administrative acts to enforce fundamental rights which they feel are “unfair”, then the courts would end up assuming jurisdiction on those very things, and by extension, everything that falls in the domain of other organs of the government. This would also put the legitimacy of the superior courts at risk. Justice Frankfurter in Trop vs Dulles (356 US 86) laid down the potent legal position:

“All power is, in Madison’s Phrase ‘of an encroaching nature’. Judicial Power is not immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self-restraint.”

On another occasion in the case of Barnett and Baker vs Carr (319 US 624) Justice Frankfurter penned down:

“As a member of this court I am not justified in writing my private notions of policy in the constitution, no matter how deeply I may cherish them or how mischievous I may deem their disregard… it can never be emphasized too much that one’s own opinion about the wisdom or evil of law should be excluded altogether when one is doing one’s duty on the bench…judicial self-restraint is equally necessary whenever an exercise of political or legislative power is challenged.”

Article 187 of the Constitution enabling the Supreme Court to do complete justice in any case or matter pending before it helped anchor the expansion of jurisdiction from 2007 onwards. It could also be attributed to a number of other factors. But independence of judiciary deserves a comment here. It does not mean that the judges are not humans. They too have their political and moral leanings. The decisions, in part, are motivated by their own sense of worldview. It is naive to expect that while handing down a judgment, a judge would detach from his core beliefs completely. There is nothing against it. But absent judicial discretion, deference and restraint, the drive stemming from one’s set of core beliefs and values thereof, especially while exercising jurisdiction under Article 184(3) becomes a source of controversy. Alexander Bickel was of the view “discharge [of judicial function] by the courts” must not “lower the quality of other departments’ performance by denuding them of the dignity and the burden of their own responsibility”. In the post-2007 and post-2016 phases, judicial review seemed more of an exercise of diminishing other branches of government and departments with a strong presumption invariably in all such cases of public interest that others are corrupt and incompetent.

The reason why Justice Frankfurter said only restraint upon judicial power is self-restraint is because courts enforce indeterminate human rights. Most of the entrenched fundamental rights are indeterminate in the context they are invoked. There is room aplenty for reasonable difference about the judgment enforcing a particular fundamental right concerning what it forbids or requires. The Ashraf Tiwana case supra might have introduced a different outcome and conclusion on the number of issues before a different bench of the Supreme Court, even though most of the facts were clear and beyond controversy.

When the courts undertake the inductive exercise of interpreting the indeterminate human rights they have the interpretative latitude to specify limits on those rights. The courts enjoy the wide powers to postulate concrete contextual meaning of those rights. Consider Article 9 of the Constitution that provides no person shall be deprived of life or liberty save in accordance with law. In the case of Ms Shella Zia and others reported as PLD 1994 Supreme Court 693, the Court held:

“The word `life’ is very significant as it covers all facts of human existence. The word `life’ has not been defined in the Constitution but it does not mean nor can it be restricted only to the vegetative or animal life or mere existence from conception to death. Life includes all such amenities and facilities which a person born in a free country, is entitled to enjoy with dignity, legally and constitutionally.”

The scope is so broad that it includes “quality of life” as well which envelops all the comforts needed for one’s well-being. The courts, rightly pointed out by Lord Edmund Davies, act as law makers supplying context, boundaries and meaning to the abstract notion of law. Justice Jackson aptly enunciated the purpose of the fundamental rights in his judgment in the case of West Virginia State Board of Education vs. Barnette (319 US 624) that the purpose was to “withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty and property, free speech, a free press, freedom of worship and assembly and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

Incumbency indeed is a reality in democracies. Politicians invariably play out to the galleries. Surfing the high tides, they are constrained to opt for popular decisions. With eyes firmly set on elections, they want to preserve their incumbency and that of their own party members. They may not be inclined to make unpopular decisions. This is where the argument for enforcing the human rights by the courts gains currency. If protecting minorities is not high on the priority of the politicians in order to avoid displeasing their respective constituencies, then the courts must intervene to safeguard the interests of marginalized sections of the societies. If some are more relevant than others in first-past-the-post-system then the courts act as institutional guardians of all citizens to protect their rights from arbitrary acts or wilful omissions by the government.

At this point, it may be pertinent to refer to the judgment handed down in Suo Motu Case No. 1 of 2014 (Suo moto action regarding suicide bomb attack of 22.9.2013 on the Church in Peshawar and regarding threats being given to Kalash tribe and Ismailies in Chitral) authored by the then Chief Justice Mr Justice Tassaduq Hussain Jilliani. He pointed out “There is a general lack of awareness about minority rights among the people and those entrusted with enforcement of law are also not fully sensitized to this issue either.” Drawing, inter alia, on Article 20 of the Constitution his Lordship critiqued the imperfect institutions of democracy; its culture of false binaries and the failure of the state to adequate afford protection to the rights of minorities:

“Pakistan is a transitional democracy and like all other countries (similarly placed) is confronted with competing political and social challenges. Most of the political institutions of consequence are in the process of evolution. However, the defining feature of democratic governance is complete dedication and adherence in everyday life to the seminal principles of equity, justice and inclusion of all irrespective of their colour, creed, caste, sex or faith. The sustainability of democracy depends on how best these challenges are met. Democracy is not an unmixed blessing; on the one hand it confers respect for minorities’ rights and on the other it provides a platform where intolerance and hatreds get leeway leading to societal friction and violence. Such intolerance and hatreds have found their way in the social media as well and no effort has been made to check it… It is because of absence of effective State action that despite elaborate textual guarantees for minorities’ rights, empirical realities reflect a mixed bag, rather a dismal state of affairs.”

The Court directed, inter alia, that appropriate curricula should be developed at school and college levels to promote a culture of religious and social tolerance, ensure that hate speeches in social media are discouraged and a National Council for minorities’ rights is constituted. The judgment is the epitome of how public interest litigation to enforce fundamental rights should be treated as was pointed out by Mr. Justice Muhammad Afzal Zullah in Darshan Masih’s case (supra). The jurisdiction under article 184(3) was exercised to safeguard the rights of the underprivileged or socio-politically irrelevant class of the society.

In human rights cases judicial deference is of utmost importance. Strong argument of judicial restraint has been made by James Bradley Thayer in his essay “The Origin and Scope of American Doctrine of Constitutional Law

“[The Court] can only disregard the [challenged] Act when those who have the right to make laws have not merely made a mistake, but have made a very clear one, – so clear that it is not open to rational question. That is the standard of duty to which the courts bring legislative Acts; that is the test which they apply, – not merely their own judgment as to constitutionality, but their conclusion as to what judgment is permissible to another department which the constitution has charged with the duty of making it. This rule recognizes that, having regard to the great, complex, ever-unfolding exigencies of government, much will seem unconstitutional to one man, or body of men, may reasonably not seem so to another; that the constitution often admits of different interpretations; that there is often a range of choice and judgment; that in such cases the constitution does not impose upon the legislature any one specific opinion, but leaves open this range of choice; and whatever choice is rational and constitutional…”

In Pakistan, especially with its by and large subject and parochial political culture – marred by periods of despotic dictatorial rule and inert attitude towards the legal system, it is important for the courts to extend concession to other branches of the government. The courts need to exercise their powers of enforcing the fundamental rights sparingly aimed only at the politically disfranchised classes of the society. If the courts are so much as perceived to be undermining both the legislature and the executive then it does not only risk their own legitimacy and dampen the public confidence but – with organs of the government at odds with one another, democracy as a whole loses.