Black Cloaked Justice

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In Pakistan the role of the Supreme Court besides being the third albeit ‘weak’ arm of the state has evolved to embrace a wide variety of complex multidimensional and crucial functions.

The ‘traditional’ role of the Supreme Court has proliferated since its inception encompassing a whole range of functions, duties, mandates and directives to uphold not only the rights, liberties and freedoms of the citizens and safeguarding the sanctity of the constitution, but also subsumes ‘untraditional’ roles through virtue of its apex courts. The scope of these ‘untraditional’ roles depends on factors ranging from a country’s geostrategic importance, to history, cultural norms, political stability and politico-economic environs. The extent to which the judiciary is involved in ‘untraditional’ roles is indicative of the country’s stability, strength and popularity of the other two ‘stronger’ arms of the state: the Legislature and Executive, and the unofficial but all powerful elbow joint that comprises the Pakistan Army.

Oscillating between democratic and military regimes since Pakistan’s establishment, the ungainly jobs of being the ‘Platonic Guardian of Democracy’ and ‘Enforcer of Values’ have been thrust on the Supreme Court in addition to everything else. The modus operandi to carry out these functions plunges the hitherto unbiased and unswayed Supreme Court into the deep murky recesses of politics where it has to, caeteris paribus, deliberate the legality and constitutionality of a certain type of regime. On paper, upholding the values of democracy and the constitution in the case of determining the legitimacy of a ruling party should be an open shut case: democratic in spirit or not? However Pakistan’s history is beset with politics holding a sway on the ruling rather than having it the other way round. Bringing to the fore another nebulous aspect of the judiciary: judicial activism.

Here the lines between ‘upholder and enforcer of constitution’ and ideologically tainted judicial review get blurred. The lawyer’s movement in 2007 which began as an organized peaceful protest to assert the independence of the judiciary was an unprecedented success for effective judicial activism. The fact that Bar Councils across the country are so well organized was used to its advantage when thousands of lawyers were mobilized simultaneously to take up the cause morphing into a mass movement when a vacuity for power and influence emerged from within the movement. The religious right was one that used this to its advantage. Islamic sloganeering is why people amassed proud in the years leading to Pakistan’s separation from India; it was used to keep Zia in power and in this case to provide approval for the fight for a completely unrelated ironic cause: restoration of the Chief Justice to uphold a constitution they don’t believe in and want to be replaced entirely with the Shariah. The fruits of the religious right’s labors emerged when lawyers around the country held mass funeral prayers for Osama bin laden and declared unanimous infatuation with Mumtaz Qadri.

The power of judicial review grants the Supreme Court the trump card to trump all other claimants to power. It recently used this card for the removal of Sohail Ahmed from the post of secretary establishment, and claimed that it had the right review the performance of the Prime minister and the Executive outfit last year. This process reviewed by a lesser bench culminated into the six points formulated and passed on to a higher bench which declared that the President and the Prime minster had indeed over stepped the boundaries of their mandate and failed to stay true to their respective oath undertaking.

The recent fracas around the Memogate issue is one contentious example. Without considering the question of why the appeals by the Parliament’s opposition were accepted in the SC without giving the Parliament sufficient time to formulate its own investigative body, the two parallel legal entities are headed for a crash collision if they come up with conflicting conclusions. Will the judiciary then deny the legislature its supremacy and over step its own boundaries or will it back track its own suo moto.

Fact of the matter is, the masses are stacked right behind the Supreme Court, the failures of the current government abound by the day and whether or not they are falling prey to another form of judicial vigilantism is a question for tomorrow not today. The President and the Prime minster might have failed to toe the line but is the Supreme Court in danger of following suit?

By Ghalib Sultan
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October 2015
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