Uzair Ali talks about a
Judiciary And Populism – Pakistan is in throes of multiple crises including the highly negative consequences of judicial activism that is feared to exacerbate the intense polarisation that is ripping the polity apart. Pakistani judiciary has a mixed record of performance and it is widely known to behave in partisan manner in matters of governance that has mostly favoured the autocratic forces playing a dominant role in the country. Judicial activism in Pakistan is the offshoot of populist tendencies in governance witnessed in many countries of the world and they are known to be a threat to the independence and proper functioning of the judiciary. Indeed, there exists a general trend among populist leaders to employ a range of measures ranging from adverse public remarks to more extreme measures like constitutional amendments and court-packing, designed to interfere with the independence of the judiciary as a constraint on executive segment of governance. It has been commented that after two decades in power populist Erdogan of Turkiye has achieved such a grip over state institutions particularly the judiciary that even after extremely bad performance of his government he is very sure that he will win another stint in power. His rule was aptly supported by judicial support through enlarging constitutional courts that were packed with his supporters.
For a political leader, going populist is a huge attraction and few of them could resist this temptation and invariably fall for it. This is the reason that political governance is hugely impacted by populism and it also affects the judicial systems and process. They tend to impact judicial activity in various ways such as overt attempts to interfere with the judiciary through administrative measures. Removing judges on one pretext or the other is also witnessed in this respect and Pakistan has and is experiencing such disruption and this tendency is seen to take place currently and may continue in the future. Efforts to limit the jurisdiction and writ of the judiciary is also one method employed by the populists and they also try to bring judges of their choice in the courts expecting that they will constitute hearing benches favouring their thought-process. The executive authority given at the disposal of populists is used to take over some functions assigned to judiciary and often grab it through the parliamentary support they command. It is often found in this context that for making the judiciary to concede to their demands placement of like-minded judges plays a crucial role and tips the balance in favour of the populists. This tendency has been duly marked in Pakistan and the recent conduct of Pakistan’s apex judiciary bears ample witness to it. Interestingly, it is now getting evident that a part of the apex judiciary fell prey to the populist agenda and crucially remained intent on following their self-conceived convictions to an extremely large measure.
The populists often resort to referring to the all-pervasive popular will and insist that they are just following what the people desire. They conveniently ignore that the popular will cannot be impressed upon every segment of a people as respective opinions also carry equal weight though they may not represent the majority opinion. The evolution of the current world has manifestly pointed out that consensual pluralistic opinion is what actually counts and is considered certainly superior than the hackneyed concept of popular will devised and developed in the 18th century by the anti-monarchical elements and was a precursor to democratic development and its consistently evolving forms that is currently taken as of relevance. Resorting to the concept of popular will often provides institutional legitimacy to populists that they utilise as a mechanism through which they can influence the judiciary not when in controlling the government but also from outside as has become evident during the crisis faced by Pakistan. Recently, the effect of populist reaction from some influential political elements strongly impacted part of the superior judiciary that was found calling shots suiting the agitationists’ agenda intensely destabilising the situation in the country that is already reeling under the weight of unprecedented economic crisis. The situation reached a point that the superior judiciary began ignoring liberal interpretations of the law in favour of interpretations that serve populist sentiment. It was also found that the judiciary was taking instrumentalist approach to judicial review thereby modulating them according to the sentiments aligned with those of the populists.
The difficulty was compounded when certain judges were seen engaged in indirectly lending credence to the agenda of the populists strengthening them to the point that they started challenging the very basis of the state and governance process. They tried with extreme determination to defy the writ of the executive by overtaking many executive functions through many contentious judgments delivered on the basis of judicial activism. It was pointed out by many observers that such judges attempted to re-write the national statute without having the mandate to do so resulting in widespread resentment in socio-political circles. It was also observed that some members of the superior judiciary started interacting with people through public events with a view to influence their opinion about the efficacy of judicial activism without realising that the apex judiciary has a very heavy backlog to clear that is badly affecting the cause of justice. The assumptions in this respect were that the public support would increase for their work although such activities often ended up in causing more controversy than popularizing judiciary. In the process what was fatally ignored was that such actions enormously increased polarisation within the polity that ultimately resulted in violent agitation that witnessed attacks on state institutions.
Populism has already risen in Pakistan with devastating results as all segments of state have come under its influence and are browbeaten by it. Pakistani educational system, media and religious institutions are now known to be in its grip and, to the ultimate peril of the country, the judiciary is also seen being increasingly politicised. Many experts however believe that the current situation is the obvious result of Pakistani system trying to find out its real moorings though they point out that the route it is taking entails more disruption and is required to be avoided. They also point out that by listening, even partially, to the clamours of populism judiciary may be legitimising its role in the polity as in times of stress it is vital to powerfully assert one’s position in it. They insist that it may not be possible for the judiciary for all times to come to remain a nonchalant bystander and will be pulled in by the currents of populism. The fear however is that the efforts to legitimise itself in the eyes of people may also have adverse effects and the judiciary may end up as the bad boy that may be roundly accused of creating chaos. One point of view is that following the populist course of events the judiciary may well chart out a role that may prove conducive is protecting liberal democracy. There is hardly any doubt that pursuance of democratic values is required to be pursued by all segments of the society including judiciary. But the problem here is that only judiciary could tilt the balance decisively in favour of balanced and equitable governance and it is incumbent that all segments rally together to achieve this target. The Weekender