In Pakistan, attacking the superior judiciary has a long history
https://arab.news/2r33j
It’s not new and it’s been happening for a very long time. When the political elite of Pakistan, whether in government or opposition see a case going against their own interests, they begin attacking Supreme Court judges left, right and center. In their power struggles, which they often engage with through constitutionally questionable means, they spare no institution if they have lost or fear losing an important case for adjudication in the courts.
A mixture of contradictions in the attitudes of the ruling elites, and even sitting governments, has shaped the contentious judicial politics in the country. Apparently every political leader and party professes independence and autonomy of the judiciary but has a history of packing the courts with their favorites; they shower praises on the judiciary if a verdict is in their favor and denounce it squarely when it goes against their interests; they want all state institutions, including the judiciary, to stay above politics and to not be made controversial, but will spare no effort to malign them when things go wrong from their point of view. This is true of both governments as well as opposition parties. In order to explain these conflictive political views about the judiciary, we have to consider practical political interests at stake at any given point in time and a troublesome history of judicial activism and efforts by civilian and military governments to subordinate the courts to their political will.
It may appear a bit simplistic but gleaning through the pages of Pakistan’s history, it seems very true that the failure of the judiciary in critical times was a manifestation of the many personal as well as institutional failures of the governing elites and parties in power. There is a consistent pattern of political disputes ending at the doorsteps of the Supreme Court. The reason is an unwillingness of the government and opposition parties to sit around the table and resolve issues through dialogue. Equally important is the fact that dynastic parties and generals reduced the sovereignty of the parliament, stunting its role and leadership to address issues of national importance in a bipartisan fashion. Consequently, the politics of conciliation, compromise and developing consensus in the national interests has suffocated, creating a big space for the judiciary and security establishments.
There is a consistent pattern of political disputes ending at the doorsteps of the Supreme Court. The reason is the unwillingness of the government and opposition parties to sit around the table and resolve issues through dialogue.
Rasul Bakhsh Rais
The top or constitutional courts have the final word on interpreting the fundamental law in every democracy, but in Pakistan, there is a thin line between constitutional ambiguity and a political issue, as rival political groups have a long history of peddling political interests through positive judicial intervention. The hot political issues that generally the courts would like the political parties and legislatures to fight out are taken up quite willingly by Pakistani courts, arguing their bear on public interest, national security and governance.
The question of separation of powers and opacity in the distribution of authority between the post-colonial executive and the legislature in the formative phase of the country made the Supreme Court controversial when it ruled against the legislative supremacy in the Federation vs. Maulavi Tamizuddin Khan case (1955). The political parties then condemned it as a fatal attack on democracy, which truly got crippled before it could walk. On the heels of it, a few years later, the military intervention in 1958, reconstitution of the courts and validations of Martial Law further reduced the stature of the judiciary in the eyes of the general public and politicians of all shades and opinions. Three more military interventions and the tendency among civilian governments to place partisan nominees in the courts prevented the judicial branch to grow in national stature. The dismissal of the entire superior judiciary and putting judges under house arrest by Pervez Musharraf in 2007 was the last straw that broke the camel’s back. The lawyers, civil society and political parties launched a big movement to restore the ‘independent’ judiciary.
Ironically, that didn’t suit the Pakistan People's Party (PPP) government when it took over power in 2008 and refused to restore judges until a credible threat of a long march and a push from the security establishment forced them to do so in early 2009. Riding on the wave of public support, the restored judiciary showed its power by intervening in issues of governance, invoking public interest, declared the National Reconciliation Ordinance unconstitutional and disqualified sitting Prime Minister Yusuf Raza Gilani. In the same way, Nawaz Sharif, a three-time prime minister got disqualified, convicted and removed from office in 2017 for hiding his source of income. With this in mind, the political class trying to shape the composition of the courts while pursue confrontation as a strategy, is all rooted in political experience.
We are witnessing the same behavior now, after the Supreme Court rejected the coalition government’s plea to form a full-bench on July 25 and as they lose the battle to govern the largest province, Punjab, without a majority.
The language against the court is bitter, malicious, accusatory and utterly undemocratic, but one has to judge it in context-- and in the light of ongoing political confrontation, the crisis environment and the huge stakes of big rivals.
- Rasul Bakhsh Rais is Professor of Political Science in the Department of Humanities and Social Sciences, LUMS, Lahore. His latest book is “Islam, Ethnicity and Power Politics: Constructing Pakistan’s National Identity” (Oxford University Press, 2017).
Twitter: @RasulRais
