The Rise Of Judicial Activism: Is Democracy Under Threat?

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.

On the other hand, what is often overlooked by critics of democracy is that for an ethnically diverse country such as Pakistan, lack of democracy will be catastrophic and in fact historically every dictatorship has resulted in increased feeling of marginalization. Democracy may have proven short on quality governance (for that matter so has dictatorship) but it is the only workable way to ensure that diverse voices are heard and their concerns are properly incorporated in the policy framework. Courts cannot do that. Judiciary by its design is not meant to capture the sentiment of the people. It can only give verdict on issues which cannot be solved out of court. Judiciary by design has to be insulated from people and politics. Independent courts do not mean overly interfering courts. Yes there is scope for what is known as judicial activism but that scope is limited and does not pertain to matters like setting petrol prices!

Moreover, the stability obsessed crowd needs to realize that the solution is not replacing democracy with autocratic rule or judicial rule but by ensuring the mechanism which ensures that chaos does not develop and governments do not become excessive in their conduct. Democracy may not be a perfect system but a modern and ethnically diverse state needs it. The central thrust has to be on recognizing where democracy is faltering and how to ensure that those areas are strengthened.

Liberal elements also need to recognize it. Branding every concern as reactionary will not solve the problem. If middle class in Pakistan is skeptical of democracy and if chaos rules every time, PPP and PML (N) are in power, then the issue needs to be examined to understand the reasons.

That brings us to a related question: does the middle class hate democracy? The answer cannot be a definite yes because it’s the some apparent outcomes of the democracy in our part of the world which it detests. It does have concerns which periodically surface when democratic rule is again given a chance. One cannot conveniently dismiss every concern by branding it as reactionary or a manifestation of deep rooted insecurity about losing privileges the status quo offers. One can blame armed forces for harboring such insecurities but not the entire middle class.

In Pakistan, democratic regimes have been short on providing stability. One thing this class really loves is stability which too some extent is an outcome of its pro status quo orientation. Democracy in the developing countries, particularly if it’s not “regulated” tends to bring chaos as coalition building and consensus formation process does not develop quickly. Moreover, since democracy is essentially a game of numbers, at times governments have indulged in member grabbing making the term “horse trading” infamous. Consequently the romantic love for a strong ruler intensifies each time the politicians indulge in destabilizing and chaotic practices when given a chance. It’s a small wonder that whenever army has intervened directly, there has been a sigh of relief from the middle class. And historically armed forces have intervened when political chaos was reigning supreme.

Moreover, the executive has often overstepped its authority and has used mandate as a justification. Moreover, the justification is also supplemented by the argument that if people do not approve of these “steps” , they will remove the government in the next elections. These repeated acts which use explicit justification of a public mandate, has at times alienated middle class from the notion of democracy itself. The dysfunctional nature of democracy in Pakistan, riddled with chaos, where executive tries to justify excesses on the basis of a public mandate has created an ambivalent feeling in some parts of the middle class. Moreover, one has to understand the some of the interventions (though not all) by the armed forces were actually an outcome of the chaotic situation the politicians had brought.

Obviously the arguments against democracy by this class also constitutes anti feudal sentiments. It is often pointed out that the representatives of the people are actually feudal lords who come to the power through votes and in this way the feudalism is further strengthened. In fact according to some elements of the middle class, democracy is even more problematic as it creates an umbrella of legitimacy due to mandate.

Are these concerns justified? This question certainly merits debate. I have already written that simply branding every criticism as reactionary will not solve the problem. We need to assess as to why this situation has arisen.

One of the major problems in Pakistan is that it still is an agriculture based society with a strong social patriarchal structure which thrives on contact building. Parliamentary democracy on the other hand has evolved in the industrial societies and is functionally geared to address the needs of that kind of society. Western model of universal suffrage also presupposes educated and informed electorate, established social voluntary structures like unions, associations, mature and responsible media and above all a strong tradition of constitutional liberalism which is underpinned by independent courts, separation of powers and strong emphasis on individual liberty.

In the western world these features evolved before the advent of universal suffrage. Farid Zakria’s excellent book titled as “future of freedom” chronicles the development of constitutional liberalism in various countries of Europe and argues that such development needs to precede democracy for it to be stable, sustainable, and for ensuring that governments remain accountable in every respect. Zakria argues giving historical examples that voters alone cannot make the government accountable without a strongly entrenched tradition of constitutional liberalism. In fact historically countries where democracy arrived before these traditions have fallen victim to chaos and eventually despotic rule by some strong man. Chaos, if developed would naturally be countered by establishing authority and unquestionable subservience which normally comes with military rule. This rather unfortunate historical reality negates the claim that democracy will automatically lead to strong and accountable institutions over time.

Moreover, another notion which has often proven irrelevant in a country like Pakistan is that voters alone can provide the necessary accountability. This unfortunately is not even true for developed countries. To begin with, mandate does not necessarily reflect complete will of the people due to principal agent problem and moreover vote received in an election does not necessarily validate every step taken by the Government during its reign. Voters eventually appraise the OVERALL PERFORMANCE of a party, not every step. So therefore claims that if voters do not approve of a particular controversial step, they will vote the party out in the next elections is not a valid argument. Due to this factor, there is a legitimate rationale for judiciary and media to keep a check on the government during the interim period. Independence of these institutions is a prerequisite on these grounds.

In Pakistan this problem is even more severe as most of the parliamentary seats are from rural area and there the politics is based on completely different issues. A quick look at the respective rural urban political profiles will attest it. Elections are not fought on ideology in rural areas or on policy related political issues but on the strength of candidates which explains as to why parties (both of left and right) field strong candidates. These individuals are often in a position of winning independently also. The basic criterion of a strong candidate is his wealth, political clout, influence on the local bureaucracy and his ability to successfully push through local demands such as jobs, sanitation, construction of small roads, arbitration of local disputes etc. When rural voters appraise an incumbent, they are actually appraising him in the light of his performance strictly at constituency level. Thus votes won in the rural areas should not be interpreted as endorsement on national policy issues or for that matter approval of excesses. THIS IS A VERY SIGNIFICANT POINT WHICH IS OFTEN COMPLETELY OVERLOOKED OR AT TIMES JUST NOT SPOKEN FOR THE SAKE OF BEING POLITICALLY CORRECT. This dichotomy between rural and urban politics thus does strengthen the case that democratic process alone cannot provide full accountability or ensure that executive wont indulge in excesses. The notion that people alone are the best arbiters may be politically appealing thing to say but ignores a reality.

It is in fact because of these gaps that judicial activism is gaining strength in urban areas. Let’s not forget that the present judiciary, has not been imposed by the establishment but was brought into office due to a popular movement in the urban centers of Pakistan. We can call it a media generated hype as much as we like but hypes alone do not explain people filling up the streets and getting their heads cracked just for bringing a droopy eyed person back into power. It may have been an urban based movement but obviously it originated because there were some perceived gaps in the accountability process of the executive.

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.