Thursday, July 16, 2009

Guest Post: An Argument For Judicial Activism In Pakistan

A couple of days ago, Bubs wrote a post that criticized the Supreme Court's actions vis-a-vis the carbon tax. Aqdas Afzal, an adjunct faculty member at the Lahore University of Management Sciences, wrote and sent me a rebuttal, not just concerned with the carbon tax but judicial activism in general. Without further ado...

The restoration of the judiciary as a result of the peoples’ movement for the better part of 2007 and 2008 is a big positive for the Pakistani political system. The restoration of the Iftikhar Chaudhry Court has not only provided a balance between the powers of the state and the society – with the society being successful in this instance – but has also provided a much needed success story for the citizens of this country. This success story will provide an optimistic counterpoint not only to the hapless average citizen, who has all but given up on the government but also to the intellectual elite – the brain trust, if you will – who do not tire from harping “something is rotten in the state of [Pakistan].”

The Iftikhar Chaudhry Court has taken a driving seat role in providing relief to the aam aadmi – the common man. Consider, for instance, the very latest pronouncement from the Court in which the Court temporarily stopped the government from charging the recently imposed carbon tax resulting in an immediate relief in gasoline prices for the aam aadmi. In another instance, the Court stopped the National Electric Power Regulatory Authority (NEPRA) from increasing the prices of electricity and has directed the Authority to review its decision to increase prices. The imprint of this new driving seat role can also be seen at the level of the High Courts which have extended their ambit to social policy.

Certain quarters have labelled this driving seat role of the Iftikhar Chaudhry Court as “judicial activism” and have declared it to be detrimental to the stability of the political system. I beg to differ. Having a Court that takes an active position on all matters of economic and social policy is a positive thing, especially within the context of a developing country like Pakistan that has poor-quality institutions. Let’s try to analyze the value of this new driving seat role by looking at the following key questions: What is judicial activism? Is such judicial activism unprecedented in modern democracies? Is judicial activism always good? Is there need for judicial activism in Pakistan?

What is Judicial Activism?

Despite the fact that Prime Minister Gilani recently mentioned that he believes in judicial activism...”, judicial activism is not always cast in such charitable terms. There is no single agreement on what judicial activism actually is. The term, however, usually refers to a biased interpretation by the court based on its personal beliefs as to what a particular law means as opposed to the interpretation of an un-biased, informed and neutral observer. The term also refers to instances in which superior courts make social and economic policy, that is, when judges “legislate from the bench.” In other words, though there is no consonance of views on what actually constitutes judicial activism, it usually has a negative connotation and represents a situation in which courts take an active position on economic and social matters.

However, judicial activism should not be confused with the role of the Supreme Court of Pakistan as the final interpreter of the constitution. This final interpretation is called judicial review. The constitution, through section VII, allows for specific powers of judicial review for the Supreme Court of Pakistan. This means that the Supreme Court may strike down any law passed by the National Assembly that the Court find’s unconstitutional. The Supreme Court has been regularly playing its constitutional role by assessing the constitutionality of laws passed by the National Assembly.

Judicial activism, then, is activism from the bench that goes beyond the day-to-day judicial review. Imbued with activist leanings, judges may pass verdicts that speak to the needs and interests of a population that is not being served by its government – due to inefficiency, corruption or disconnectedness. Activist judges may also pass verdicts which may not be popular but conform to the standards of fairness and justice. For instance, an activist Supreme Court in Pakistan may one day order the assimilation of government and private schools so as to not keep creating a semi-educated underclass. An activist Supreme Court may one day also address issues involving social and distributive justice and seek to analyze the viability of land reform in this country. In short, judicial activism is not judicial review. It goes beyond, whereby judges take a driving seat role in making economic and social policy.

Is Judicial Activism unprecedented in Modern Democracies?

In the United States, the Supreme Court has, from time to time, catered to the interests of the US population by coming out with verdicts that would have been impossible to implement politically – Roe v. Wade, I think, would be the best example of that. Moreover, the Court has really stayed ahead of the curve as far as protecting criminals from self-incrimination under duress (police torture) by guaranteeing protection through the Miranda rights.

The Supreme Court of Israel is considered one of the most activist courts in the world. For two decades the Supreme Court in Israel has consistently come out with “activist” rulings that were just, if politically unpopular. For instance, the Supreme Court in Israel consistently entertains appeals from Palestinians that seek recourse against the excesses of the Israeli Defence Forces (IDF).

Across the border, the Indian Supreme Court also has a tradition of judicial activism. The Court has recently accepted to hear a petition against the Delhi High Court’s setting aside of a law pertaining to criminalizing same-sex marriage.

Is Judicial Activism Always a Good Thing?

No. Judicial activism is not always the best thing for chiefly three reasons: First, those who oppose judicial activism argue that by engaging in activism, courts transgress on a turf that is not theirs’ to begin with. Social and economic policy making is, it is argued, is the sole province of the elected branch of the government – the legislature. Unelected judges, it is argued, have no legitimate right to overrule or strike down the policy choices of elected representatives.

Second, exercising judicial activism and preventing an elected government from making appropriate economic or social policy subverts the process of accountability inherent in a democratic form of government. Faced with an activist court, any elected government can divert blame on its ineffectiveness to that of an “activist” and “meddlesome” judiciary. Thus, it can be seen that there is some inherent tension in having an activist court as it often questions an elected government’s economic and social policy choices.

Last, judicial activism is a slippery slope. Judges need to tread very carefully in taking activist stands on matters of economic and social policy. Such caution is important as riding roughshod over the legislature or the executive will invariably create institutional gridlock. This gridlock if unresolved will have the potential to push the entire political system towards a collision - something we have seen happen all too often in this country.

Is there need for Judicial Activism in Pakistan?

Absolutely. Nearly all stipulations about the supremacy of the legislature in economic and social policy making, assume a minimum level of efficiency and transparency in the institutions of governance in a democracy. The situation in Pakistan is far from that. Both corruption at the lowest level and rent-seeking at the highest make Pakistan a tough place to survive for the aam aadmi. According to Transparency International, the civil society organization that leads the international fight against corruption, Pakistan ranks 134 out 180 countries in the Corruption Perceptions Index (CPI) released for 2008. The National Corruption Perception Survey (NCPS), carried out by the local chapter of Transparency International, shows that Police is no. 1 on the list of corrupt institutions in Pakistan.

The general dissatisfaction with ineffective and corrupt government is ubiquitous in Pakistan. There is a huge disconnect in this country between the rulers and the ruled. The rulers, perhaps, do not understand the daunting challenges the aam aadmi faces in the daily cycle of 24 hours. Either that or the elected representatives are unable to look beyond their myopic personal interests. To quote the editorial that appeared in The News on July 8, 2009 “ [t]he people have no spokesman. Leaders have repeatedly failed to act on their behalf.” Albert O. Hirschman, a leading intellectual, wrote in his Exit, Voice and Loyalty (1970) that a population’s dissatisfaction with its government can be ascertained through exit (emigration) and voice (protests). It would tautological to mention that both have gone up exponentially in this country.

Therefore, against the backdrop of an inefficient, corrupt and disconnected government that conveniently forgets to deliver on pro-poor policy promises like price relief for the most basic food commodities – relying on the politically expedient cash transfers program, instead the courts have taken on a very important responsibility on their shoulders. Through judicial activism, honest, conscientious and hard working judges can force this government to be efficient, honest and in-sync with the broader interests of the nation.

In sum, then, judicial activism has a negative connotation and carries the potential of bringing the business of the state to a grinding halt. Nonetheless, judicial activism becomes a necessary evil in countries like Pakistan where governments are inefficient, corrupt and disconnected. Speaking figuratively, the Iftikhar Chaudhry court is the veritable Atlas carrying the weight of the world on his shoulders. Eventually, our future is a function of the choices we shall make as a society. We must, however, not let this Atlas shrug.


Farooq said...

You know, I'd have just let this class lecture dressed as a blog post slide if you hadnt ended by referring to Iftikhar Chaudhry and/or his court as a "veritable atlas". I have a hard time taking anyone who considers Iftikhar Chaudhry as the embodiment of justice seriously.

I dont disagree that judicial activism is necessary in developing societies such as Pakistan which are plagued with inept civil institutions.

But I find judicial activism of the sort expounded by the Chaudhry Supreme court difficult to trust because of the personal agenda of Iftikhar Chaudhry himself. The guy was reinstated on a platform of civil popularity and it seemed inevitable he was going to substantiate those credentials by taking every opportunity to challenge the government on behalf on the "aam aadmi". Judges shouldnt be politicians and thats exactly what Chaudhry has become.

There are going to be a lot of taxes and bills passed over the next couple of months and years, whose passage will be as constitutionally sound as the carbon tax. So what, is the ultimate arbitrator of all those measures going to be the Supreme Court?

AKS said...

I appreciate that you've given us an academic understanding of the situation and I really do feel that judicial activism can play an important role in Pakistan. But there are a few important points that your post overlooks entirely:-

1) It too easily absolves the Iftikhar Chaudhry Court of its many sins pertaining to their injudicious activism. There is seriously something wrong when the Supreme Court feels the need to call the IG Sindh to Islamabad to explain why the traffic in Karachi is so bad.

2) You give way too much importance to Judicial Activism, which may perhaps be a result of you being exposed solely to the higher courts. The major problem with the Pakistani legal system isn't insufficient activism, in fact we've always had activist judges, it is ineptitude. Our legal system would be a lot better if the courts simply started applying the law.

3) You mention Judicial Review but you fail to highlight the abysmal performance of the Supreme Court in this area. The appellate jurisdiction of the Supreme Court is the real black hole of our legal system. File an appeal and you'll be lucky to be alive by the time the court reaches a decision.

4) Judicial activism as expounded by the Iftikhar Chaudhry court further weakens the judicial system because it never questions those within the system who fail to act. Its rather noble of the CJ to take suo moto action to bring justice to a woman who has been gang raped, and the CJ always does question the police who failed to take notice, but it is extremely rare to hear the Supreme Court ask questions of judicial magistrates and district court judges.

5) This brings me to my last point: The judiciary is pretty corrupt and there's been no activism from the land's highest court to root this out. I'll give you a recent example, a year or so before the CJ showdown, the Sindh High Court led by the honourable Justice Sabihuddin (late) took action against a fellow judge and suspended him and then put him on probation; the gentleman was well known for being a supremely corrupt judge. Then came the PCO, the gentleman, still a judge, quickly signed on to the new judiciary and became the ranking member of the Sindh High Court and passed some atrocious decisions (one against us, the appeal of which is still pending - Judicial Review!!!). Well, in time the CJ and the other judges needed to be reinstated, as a result something needed to be done for this gentleman simply couldn't be expected to lead the SHC after the return of the old judges - a solution was devised and the man was deputed to the Federal Shariat Court for a year. After serving this term he is now back in the SHC as 'judge.' The judicial probe that was on-going in the pre-CJ showdown era has disappeared.
Oh and I second all that Farooq has said.

Ahsan said...

I would say that if Chaudhary is interested in narrowing the gap between the ruler and the ruled, he should take off his robe and stand for elections in a few years. Then if he wins elections, he can do whatever he wants with carbon taxes and traffic in Khi.

I would also ask all the supporters of this activist judge if they'd be so keen on him if he was saying something completely different w.r.t the actual content of his policy recommendations. What if he was completely reactionary?

He's a bad judge but an excellent politician, so he should drop the act and just run for the NA next time.

Pagal_Aadmi_for_debauchery said...

The opinion by Justice Chaudhary is ridiculous in its entirety. He basically relies upon the preamble of the constitution, Article 4 and 9 of the Pakistani constitution but does not feel the need to actually apply the law to the ordinance. Apparently, citing Article 4 and 9 in name only are a priori reasons for striking down any law.

Other problems:

(1)Afzal apparently believes that judicial activism is good because it furthers the agenda popular with Afzal (in this case, helping the aam aadmi). That is not an argument for judicial activism but for furthering Afzal's agenda.

(2) Would judicial activism still be good if the Pakistan Supreme Court strikes down laws which benefit the aam aadmi? Surely Afzal will not like that kind of judicial activism.

(3) So Afazal's argument apparently means that judicial activism is only good when it helps the aam aadmi because the legislative and the executive branches are not helping the aam aadmi. Ok, fair enough, lets accept the argument.

(4) So who now decides what is good for the aam aadmi? Would the aam aadmi be better off if the IMF penalizes Pakistan by holding back loans? So will Justice Chaudhary and his two other sidekick justices first determine what policy is good for the aam aadmi and then apply it to government legislation on a case by case basis to upheld or strike down laws.

(5) After we crown Justice Chaudhary the Dear Leader of Pakistan, what if Justice Chaudhary stop supporting the aam aadmi? Would the powers of Judicial Activism be rolled back once Dear Leader changes his mind or retires from the Supreme Court?

Mr. Afzal: I am taking note of your arguments :)

bubs said...

My main problem with this post is that it has stacked the deck in favour of the judiciary and against the government. It is taken as a fact that the judiciary is working in the best interests of the people while the government is not; that the government is corrupt but the judiciary is not. Issues like corruption and nepotism are as much a problem with the current judiciary as they are with the government.

Given that both institutions are greatly flawed, can we then support judicial activism? Afzal's arguments are based entirely on outcomes rather than the process but he has ignored the long-term damage that is caused by judges who invent constitutional theories to give judgments that they think are in the national interest. The most obvious example would be the Doctrine of Necessity.

You might agree with the outcome of the Supreme Court's decision to outlaw the carbon but if the reasoning behind it (it does not achieve what is supposed to) is applied 10 years from now to abolish, say, a progressive taxation system, would you still support it?

I feel your argument is too short-sighted. If the Chauhdry SC was interested in building a more durable institution, they would be less activist.

Aqdas said...

Since I am travelling these days, I will be posting my response to the comments in an irregular fashion. However, I will try to address most of the points in the comments.


For starters, I am delighted that you think this a class lecture dressed as a blogspot. Its not. I don't even teach in the law school.

Second, I think there is an inherent contradiction in your comment. You say "I dont disagree that judicial activism is necessary in developing societies such as Pakistan which are plagued with inept civil institutions."

However, then you write "But I find judicial activism of the sort expounded by the Chaudhry Supreme court difficult to trust because of the personal agenda of Iftikhar Chaudhry himself." You also go on to write that since the CJ has been reinstated as a result of the popular peoples' movement it is inevitable that he is going to pander to populist causes.

I think you are guilty of anti-Iftikhar Chaudhry bias. If you yourself recognize the need for judicial activism in developing countries with decrepit institutions why do you have a problem with the Iftikhar Chaudhry Court. It seems your problem stems from the persona of the CJ and I am afraid, you don't have any way of telling whether he is making all these decisions from a personal agenda to attract popular support -- for that to happen you would have to be brain wave reader and I don't think you are one. There is no inevitablity here. We are not operating in a teleological universe.

And now to answer the questions/comments in the last para. of your post:

The very concept of judicial activism -- with which you agree, incidently --forces us to contemplate a space that is uncharted territory, normatively speaking. Yes, the government has the right to impose taxes constitutionally but this does not mean that the imposition of such taxes would be fair or just. The constitutionality or legality of any act is different from a normative analysis applied to that act (good, bad, fair, just)

Constitutionally, for instance, Ahmedis have been declared non-muslim. Does this mean that this is just? In other words, judicial activism in developing countries takes stock of such "constitutional" acts of parliaments that prima facie are unjust or unfair and parliaments keep passing such "constitutional" acts because such acts serve the elected classes' ulterior and personal motives. In other developed countries, there would be mechanims for rectification -- public discourse, civil society and lobbying organizations, political parties -- but there aren't many in developing coutries. Moreover, due to decript state of the institutions the lot of the aam aadmi is so bad that action from judcial quarters becomes the sine qua non of achieving just and fair outcomes.

At the same time, judcial activim in developing countries has the power to protect minorities which may have received the short end of the stick -- this is where the Ahmedis come in. In other words, an acvtivist Supreme Court can also protect against the majoritarian excesses of a democratic government. Democracy is not a perfect form of government. In order to make sure that it delivers the goods, it has to be moderated through many other institutions.

In order to provide some relief to aam aadmi one of the institutions of democratic governance (executive, legislature or judiciary) has to step forward and take charge and none are better suited than the Supreme Court at the moment, I think. So, the Supreme Court is gonna have to be the ultimate arbitrator, in my opinion.