Monday, March 12, 2018

Business Recorder Column March 12, 2018

The ‘saviour’ complex

Rashed Rahman

The raging controversy regarding judicial over reach and intrusion into the spheres of the executive and parliament needs to be located in the trajectory of judicial activism since the restored Chief Justice of Pakistan (CJP) Iftikhar Chaudhry’s court. It may be recalled that after the lawyers’ movement finally succeeded in having CJP Iftikhar Chaudhry and his brother judges of the superior judiciary restored to the bench in 2009, the superior courts generally, led by the Supreme Court (SC), seemed to take on a populist/activist role beyond the boundaries of our traditional jurisprudence based on the time honoured principle of judicial restraint.
This led to some controversial decisions by the SC, e.g. the disqualification for contempt of court of then prime minister Yousaf Raza Gilani for refusal to write a letter to a Swiss magistrate to reopen the case/s against incumbent president Asif Ali Zardari. Gilani’s plea, rejected by the SC, was that the Constitution forbade him to submit an incumbent president to the jurisdiction of any foreign judicial forum. Inexplicably, the SC insisted, charged and declared him guilty of contempt, thereby disqualifying him from parliament and therefore the office of prime minister.
Many other examples could be alluded to that would prove an almost reckless trend under CJP Iftikhar Chaudhry to nullify all concept of judicial restraint in the name of ‘fixing’ things that were wrong, which inevitably led the court onto the tricky terrain of intrusion into the remit of the executive and legislature, eroding thereby the trichotomy of power at the heart of our constitutional construct.
What were the factors that brought about this transformation in the approach of the superior judiciary? First and foremost, it is common knowledge that there is much rotten in the state of Denmark (Pakistan). The lawyers’ community that led the struggle against Musharraf for the restoration of the judiciary was a vocal (and increasingly irrationally assertive) force for supporting such judicial proactivism, including the increasing use of the SC’s suo motu powers under Article 184(3) on the touchstone of violation of fundamental rights. What had been a power used rarely and only by way of exception, began to be used in a morally indignant manner in an attempt to correct things that were wrong with our state and society. This inadvertently has opened a Pandora’s box of effects, main amongst which is the theoretically unbounded scope of such interventions, if the concept of fundamental rights is read in conjunction with the provisions of the Constitution. After all, the concept of fundamental rights, if understood in its broadest interpretation, would enfold every conceivable sin of omission and commission by the executive and legislature, historically and currently. There seemed no boundary for such judicial activism. That is because the SC is the final judicial forum, from which no higher appeal lies. However, as has been demonstrated in US jurisprudence for many years now, the highest judicial forum is final, but not infallible. This wisdom lay at the heart of judicial restraint in the overuse of suo motu powers to adjudicate fundamental rights under our Constitution’s Article 184(3).
A proactive judiciary, inspired by messianic ideas, trespassed regularly into spheres arguably beyond the scope of our jurisprudential history and track record. But if we were to single out CJP Iftikhar Chaudhry’s court alone, how would we explain the present course set by the incumbent CJP Saqib Nisar’s court? Clearly, the unstated but increasingly visible ‘saviour’ complex may be to blame.
Pakistan has much wrong with it. No section of society or state institution is free of blame in bringing us to this pass. Fundamentally, the tricks tried in the past to hold at bay a genuine democratic order based on the one man one vote principle of universal franchise arguably led to the severance of half the country within 24 years of independence after myriads of twists, turns, bloodshed, civil war and foreign invasion. In the remaining Pakistan, the struggle for that democratic order continues to be dogged by actual overthrow by military coup makers, the faults and weaknesses of our political class wedded more to its own political, economic and pecuniary interests than serving the people’s needs sincerely, and the behind the scenes manipulations of the political process by powerful state institutions.
In this mélange and heady brew of confusion, setbacks to the democratic project and alienation of the masses from an unresponsive system stacked in favour of the ruling elite, it is no surprise that thoughts turn to the desire for a ‘strong man’ or ‘saviour’ to rescue us from this seemingly endless quagmire. This thinking is what explains the euphoric welcoming of military coups by well meaning but misguided liberal minds, only to return to the democratic fold sheepishly when the results of military dictatorship become obvious and undeniable (e.g. the trajectory of the last military regime of Musharraf).
The military and the judiciary have failed in the past to fit the shoes of saviours of the country because neither institution is equipped for the role. The military is better served by sticking to its responsibilities, i.e. defence and security of the country. The judiciary, if it is motivated by a desire to ‘do good’ would be best served and serve the country well if it concentrates on the enormous task of providing easy, affordable access to justice without the interminable delays of our judicial system that have arguably been the main cause of the backlog of about two million cases pending in the courts, high and low. Neither institution should attempt to don the mantle of saviour for fear of a repetition of the adverse consequences of such ambition in the past.
Who then, if we accept the logic of the argument above that unelected state institutions cannot manage the political, economic and social shortcomings and problems of Pakistan, should we be looking to for that ‘saviour’ role? Arguably, since the political class’ performance in our history leaves much to be desired, there is no easy, short or convenient answer. The overriding consideration for involving ourselves in the politics of the struggle for a genuine democratic system is that in the course of this struggle, the people’s issues can find voice, become the foundation for a transformatory movement of the masses, and put the non-performing political class in the dock if it fails to respond to this tide of ‘change from below’. Only when and if the masses once again step onto the stage of history, as they have done from time to time in our experience only to be beaten back by powerful state and non-state forces, will there be hope for Pakistan’s transformation into a genuine democracy, not a showpiece sham masquerading as one. That genuine democracy can offer then the possibility of an advance beyond conventional wisdom and the present setup and ways of doing things to usher in a state and society dedicated to the real welfare, not lip service, of the beleaguered people of this country.

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