The Rise Of Judicial Activism: Is Democracy Under Threat?

Published on CHOWK, by Raza Habib, December 25, 2009.

After the NRO revocation, the opinion holders appear to be divided into two polar camps. First camp is of the supporters who are hailing the advent of the “new” era of the rule of law. Within this section a sizeable chunk detests the president, is skeptic of the concept of democracy and not surprisingly belongs from the middle class. Right now led by firebrand media, this chunk is increasingly critical or at least visibly disappointed by the revival of democratic rule. It is pinning its hope on increased judicial activism where the courts will be deciding the matters belonging to executive. The criticism is no longer exclusively focused on PPP but is increasing to include the entire democratic set up. Right now the main brunt may be borne by PPP but even PML (N), the other main party, is also feeling the heat. The main point of these opponents of democratic set up is that democratic parties have failed to establish the rule of law.

On the other hand, some of the liberal elements are actually critical of the decision and labeling it a defeat for the democratic process. Right now as the presidency comes under pressure, the persona of the president is increasingly being equated with the very notion of democracy. As opposition to the office of presidency increases a sizeable portion of the liberal elements are lamenting the “undemocratic” forces’ unholy alliance to topple the evolving democracy. According to them, Democracy should be given a chance as it needs time to evolve and that evolution would lead to stronger and more accountable institutions overtime. This strain of thought besides defending democracy goes one step further: it also equates revocation of NRO or judicial activism as counterproductive to evolutionary democratic process and treats it as direct violation of the people’s mandate.

Why does such a polarization exist? Why are the two concepts, rule of law and democracy, which coexist in the western democracies, are apparently in conflict in our part of the world? Why Pakistani middle class is deeply skeptical of democracy? Is there a genuine scope for judicial activism and if yes, why? Why the liberal side of the political spectrum is branding a revocation of a controversial law as a regressive step rather than appreciating it? Some have gone further and actually called it a conspiracy by the establishment to retain the status quo and the privileges it offers. This conspiracy logic overlooks the fact that the court had actually given the government an opportunity to get the NRO ratified from the parliament and after failure, the government did not even contest it in the court. Another point which is being overlooked is that the present judiciary was not imposed by the establishment but was actually restored through a popular movement … //

… GIVEN THE ABOVE SCENARIO, JUDICIAL ACTIVISM MAY NOT BE A DERAILING FORCE PROVIDED IT DOES NOT GO INTO EXCESS. In fact limited judicial activism may keep democratic evolution on proper track and ensure that chaos and excessive behavior does not develop. Historically such behavior has always resulted in intervention from the armed forces. Compared to that prospect judicial activism is a much better alternative provided it does not go overboard. Pakistan needs democracy but a sustainable democracy underpinned by separation of powers and a multifold accountability structure.

One thing which the judiciary has to avoid doing is to start declaring politicians ineligible. Miss Asma Jehangir does have a very valid point that Judiciary should be independent but once it has asserted its independence it should not touch eligibility criteria under section 62 and avoid undertaking micro management. Independence is not over interference. Judicial activism can only be effective, it is sparsely used. Media needs to show maturity. Over hyping judicial activism is going to be counterproductive. Political parties need to show maturity and rather than branding the verdict as conspiracy against democracy, should avoid the collision course. The rise of judicial development can potentially lead to stable democracy provided the stakeholders show restrain and maturity. (full text).

Comments are closed.