[This is an excerpt from an article appearing in The Round Table: The Commonwealth Journal of International Affairs.]
A Pakistani hybrid of the rule of law & rule of justice
The combination of activism and populism that has marked the behaviour of Pakistan’s Supreme Court since 2005 has tapped into the desire of Pakistanis to see the executive held accountable for its venality, abusiveness, and incompetence. The alignment of the judiciary with the people against the executive since 2005 contrasts sharply with the previous era of judicial history in which alignment was with the executive and against the people. Drawing on public support and being able to drive the conversation on important issues because of the attention it receives from the media, a kind of enlightened judicial despotism that seeks to correct the behaviour of errant members of the executive (and legislature) through public humiliation, searing inquiry, and a broad interpretation of original jurisdiction, has been the method employed. At the same time, as the judiciary has subjected the civilian political and administrative leaderships to withering criticism, peremptory summons, and retribution, it has also proved itself to be the only civilian institution willing and able to take on the military and defy religious prejudice, as evidenced by the October 2018 judgement that exonerated Asia Bibi, a poor Christian woman accused of blasphemy and convicted by lower courts. Pakistan’s judiciary can be credited with hastening the downfall of the Musharraf regime, galvanising public discourse in favour of constitutional government, and, although politicians do not always like it (especially when decisions go against them), pre-empting military coups by acting as a mediator during crises and providing a means to challenge and even dismiss or disqualify corrupt public officials. It was the Supreme Court that enabled the restoration of the PML-N by allowing Nawaz Sharif back into Pakistan in 2007. A decade later it is the Supreme Court that quite possibly ended Nawaz Sharif’s hopes of ever returning to office and instituted an accountability regime from which the former prime minister and his family are finding it difficult to escape. The strength that Pakistan’s Supreme Court has gained since 2005 is not a function of constitutional provisions but of its popularity and prestige. The activist and populist line of action adopted by successive chief justices has replenished the political and moral capital of the SCP.
Beyond the headlines devoted to the actions and pronouncements of the SCP, the activism and popularity of the judiciary could be making possible a Pakistani hybrid of the rule of law tradition, inherited from the British, and the rule of justice tradition, rooted in the region’s historical experience. What is happening is that the Anglicised form of the rule of law is providing the constitutional and legal cover through strict or loose constructionist readings of the law, for the application of the rule of justice as deemed fair by the SCP in individual cases. As the intellectual content of the judgements of the SCP indicate, the idiomatic universe of the judges is globalised and Anglophone, peppered with references to Kafka, the Godfather, and modern democratic discourse, and imbued with a significant component of Muslim modernism. Islamisation since 1973 has had an impact on some judges and some specific laws that the judiciary is required to apply, but the broader institutional distaste for conservative notions of law is fairly transparent. The spirit, however, that animates the contemporary Pakistani superior judiciary is that of wielding its discretion in a just manner; gaining or maintaining public support; and using that support to strike down evil doers. The image might be that of which Solon approved, but the mechanism and behaviour is closer to that of Theseus. Thus, constitutional authority interpreted flexibly can be employed to impose penalties and embarrassment on the wicked in furtherance of the public interest. The SCP has imposed significant personal and political costs on national leaders that have defied it, including Musharraf, Asif Ali Zardari, Yusuf Raza Gilani, and Nawaz Sharif. Direct defiance of the court has proved to be a sure path to downfall, disqualification, exile, or accountability. Alhough not as prominent, hundreds of civil servants have also had their feet held to the fire by the post-2005 SCP and even Pakistan’s historically unaccountable security agencies have had to appear before the court and answer pointed questions.
Ilhan Niaz is with the Department of History, Quaid-i-Azam University, Islamabad, Pakistan.