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THE expectation that the judiciary should use its role as a neutral arbiter not only to interpret and apply the law but also to determine the political course of the state is heightened when political institutions seem to be incapable of resolving serious crises.
In Pakistan, courts are often expected to resolve fundamental questions concerning the identity of the state. Certain recent decisions of the Supreme Court have been perceived to mark a shift in the status quo. The Supreme Court’s decision to take up the challenge to the extension of the army chief’s tenure and then direct parliament to legislate on this issue was widely viewed as an attempt to challenge existing state power structures. The conviction of a military dictator for high treason by a special court was termed by a Dawn editorial to be a “seismic shift in Pakistan’s history”. The reactions to these decisions reveal how the judiciary is often viewed as a driver of significant change.
Pakistan is not alone in its reliance on the judiciary to resolve apparent deadlocks. We see this tendency in other states experiencing political instability. In India, for example, several petitions have been filed in the supreme court challenging the Citizenship Amendment Act, which denies Muslims a pathway to citizenship that is made available to similarly situated individuals belonging to other religions. The very identity of India as a secular state seems to be at stake in the outcome of these cases.
The tendency to turn to courts to resolve political deadlocks exists even in Western democracies where one may expect state institutions to function more smoothly. In September 2019, the United Kingdom’s supreme court declared Prime Minister Boris Johnson’s decision to suspend parliament unlawful for the reason that it would preclude debate on an issue of fundamental importance to the future of Britain — the terms of its exit from the European Union.
The judiciary, by the very nature of its role, is limited in its ability to bring about political change.
The United States supreme court has intervened in times of social resistance to settle crucial issues over which society seems too divided and state institutions too indecisive. The US supreme court decided to end racial segregation in public schools — a demand of the civil rights movement — and to decriminalise abortion — a demand of the women’s movement.
Just as these examples illustrate the important role of the judiciary in shaping state and society, they also show that in the absence of social and political change taking place outside the courts, the impact of the judicial pronouncements will be severely limited.
The judiciary, by the very nature of its role, is limited in its ability to bring about political change. Unlike the executive branch, the judiciary does not have a monopoly over brute power and unlike the legislature, its power is not derived from the people. In a democracy, the power of the judiciary lies in the legitimacy — the social, moral and legal credibility — of its decisions. To maintain this credibility, the judiciary must, more often than not, be perceived to be neutral rather than political. In authoritarian contexts, the power of the judiciary ultimately depends on the oligarchs that run the state, which means that the judiciary must compromise with the oligarchs for its institutional survival.
If we look beyond the rhetoric and sometimes overarching personalities of individual judges in Pakistan, we see that ultimately it is pragmatism, compromise with political realities and institutional preservation that have guided the work of the judiciary as an institution. We see this in the absence of effective accountability in our courts for enforced disappearances and the targeting of civilian political leadership in corruption cases.
In a context where the suo motu powers of the Supreme Court are invoked frequently, it is instructive to observe which issues the highest court does not take up suo motu: for example, constitutionality of the law on blasphemy, systemic suppression of media freedom and widespread militarisation.
There have certainly been times when the judiciary has hastened political change in Pakistan, sometimes by directly challenging brute power. The resistance of the judiciary to Gen Pervez Musharraf’s purge fuelled the movement to depose the military dictator. But even though the face of the dictatorship was removed, the judiciary was unable to stem the erosion of fundamental rights in subsequent years (by, for example, upholding the establishment of military courts), and the continued weakening of elected governments (through, for example, the disqualification of former prime minister Nawaz Sharif). The judiciary could not stall the recent backsliding of Pakistan towards authoritarianism.
The truth is that constitutional morality is not determined by judicial decisions — nor should it be. It is determined by political power. Ultimately, the courts and the judiciary cannot and should not be expected to disrupt the status quo in any sustainable way, unless there is continued political momentum and a broader movement for change. Indian political theorist Pratab Bhanu Mehta summed it up when cautioning against an overreliance on courts to resolve the current moral and philosophical crisis facing the Indian state: “[T]his direction is not going to be set through the nice formalisms of the law, or the contrived conventions we can adhere to in normal times. The direction is going to be set by the mob, by brute power, by mobilisation.”
Let us not place the burden of our political expectations on the judiciary. Not only is it unfair on our superior courts, it will also distract us from where the work really must be done: in our university campuses, workplaces, factories, parliament and our streets. We should rely on courts only when we are doing a lot of work outside of them, in those spaces where democracy really happens.
The writer is a lawyer.
Published in Dawn, January 6th, 2020
