Judicial activism threatens democracy
July 06, 2012
Intellectuals across the world are unanimous that judicial restraint is the only way that ensures dispensation of justice and stitches wounds in democracy. It has been observed in many countries that judicial activism halted democratic trends, seizing power of the elected governments or agencies.
After restoration of judiciary in Pakistan, the courts allegedly gave a few judgments that were debated at different forums for leaving ambiguity in the interpretation of law. The largely debated ordinance in Pakistan, the National Reconciliation Order (NRO), paved the way for restructuring of democratic setup in the country as well as independence of judiciary under democracy.
When the 1973 Constitution was restored after eight years of Gen Musharraf’s dictatorship, the Parliament had thrown out the NRO and the judiciary termed it (NRO) null and void. This controversial ordinance was issued by former president Musharraf to grant amnesty to politicians, political workers and bureaucrats, who were accused of corruption between 1986 and 1999.
The ordinance deepened political crisis besides begetting profound mistrust between the elected coalition government and judiciary. The Supreme Court is accused of meddling in politics in a contempt case against former Prime Minister Gillani, who was ordered by the court to write a letter to the Swiss authorities for reopening of money-laundering cases.
In the same NRO issue, the Supreme Court stretched its jurisdiction, charging the then Premier Gillani with contempt of court, despite that no petition was filed against him. The court further accused PM Gillani of ridiculing the judiciary as he denied writing a letter to Swiss authorities against President Zardari. Mr. Gillani was of the view that the Constitution didn’t permit him to write a letter against the President, adding that the Heads of States across the world enjoyed immunity, so why not in Pakistan?
Meanwhile, the Supreme Court over ruled ruling of National Assembly Speaker Dr. Fehmida Mirza, quoting its (SC’s) interpretation of law and disqualified Syed Yousaf Raza Gillani after rejecting speaker’s arguments in Prime Minister’s Contempt of Court matter.
The federation of Pakistan from the very first day argued before the court that the contempt of court law was no more part of the constitution; therefore, the SC shouldn’t exceed its authority.
Furthermore, former federal minister for law Dr. Babar Awan also stood accused of contempt of court in a suo motu case. During the hearing, Awan had stated that the SC is working on doctrine of necessity. He Awan argued that the SC ruled against its own rules and procedures as no contempt of court law existed in the country. He added that there were three contempt of court ordinances, which are not part of constitution.
He said Chief Justice Iftikhar M. Chaudhry himself took oath under Provisional Constitutional Order (PCO-2000), which provides cover to several judges’ oaths. “One PCO cannot be legitimized if the other is termed unlawful,” he added.
People on social media were found tweeting that the top jurist was more interested in self-projection than justice and accountability.
On the other hand, the apex court influenced powers of Chief Executive of the State in several cases, taking sue motto actions in NICL scam, Hajj corruption, ephedrine and many other cases.
The national and international media discussed all aspects of the court’s recent actions in detail. Several media reports alleged that Supreme Court was waging a campaign of judicial activism, pitting it (SC) against an elected civil government.
A renowned jurist and Press Council of India Chairman Justice Markandey Katju has also criticized the Supreme Court of Pakistan for unseating Yousuf Raza Gilani. It has “flouted all canons of constitutional jurisprudence”, and is only playing to the galleries and not exercising judicial restraint," Katju said in an article mailed to journalists.
History of the Pakistan is peppered with intervention of non-democratic forces in democracy, which resulted in martial laws and emergencies in the country. Critics say judicial activism in Pakistan is damaging democratic values by intervening in political matters.
After Yousaf Raza Gillani, the newly-elected PM Raja Pervez Ashraf was also asked to implement the court orders regarding money laundering case against President Zardari. However, Mr. Ashraf repeatedly refused to do so, even while speaking on the floor of the House.
Observing the present clash-oriented situation between Judiciary and the Parliament, it may be easy to analyze that judicial activism in this race for power would tear down the already wounded democracy.