While everyone was expecting that there would be a compromise between the judiciary and the legislature in the contempt case against Yusuf Gilani, the Supreme Court disqualified the Prime Minister. Though the parliament and the President have accepted the verdict, the problem has just begun and is likely to take different forms and raise multiple questions. What is the judiciary likely to do next? Will this tussle between the judiciary, legislature and executive help Pakistan build its institutions and maintain the democratic form of government?
Many within Pakistan, including the critics of the Pakistan People’s Party (PPP) and the supporters of judicial activism of the Supreme Court, consider that the higher judiciary has gone overboard by disqualifying Gilani. The civil society seems to be deeply divided over the issue; a section supports the judiciary, while another section, though not supporters of the PPP, oppose the extreme form of judicial assertion. There is also a third section, which is pro-PPP and considers that the judiciary is pursuing a political vendetta against the party, and in particular against President Zardari for delaying the restoration of the judiciary in 2008.
Is the Judiciary playing to a gallery?
Undoubtedly, PPP is not the darling of the people in Pakistan. People love to hate Zardari and he has become the scapegoat for everything that has gone wrong with the country. The military have silently taken a back seat allowing the PPP-led government to take all the blame – from a failing economy to the reopening of the NATO supply lines. Unfortunately for the PPP, there is no single success story for them, either on the domestic front or in its external relations. Perhaps, the only success for the government has been the length of its tenure.
The judiciary, in addition to its popular appeal, also has the support of a majority within the media. While, the print media is relatively moderate, the electronic and social media have gone overboard in presenting one side of the story.
The judiciary in many developing societies, including Pakistan, has become assertive whenever there is a weak government. The judiciary in Pakistan is not only aware that the government is weak and unlikely to get confrontational, but is also aware of its popular support base, especially for its Chief Justice.
Would the judiciary have remained this assertive had the ruling party commanded absolute majority? Would it have a delivered a similar judgment against Nawaz Sharif had he been the Prime Minister? Zardari has avoided a confrontational course until now, and is unlikely to pursue such a strategy. So, the judiciary is likely to continue its assertion and remain even more active.
Can an activist judiciary directly govern Pakistan?
This is a larger question that both the judiciary and those who support its activism have to ponder. In any democratic society, where the constitution is supreme, the three primary institutions – legislature, executive and judiciary - have well defined functions and responsibilities. There is not only separation of powers, but also checks and balances.
Undoubtedly in Pakistan, both the legislature and the executive have failed to perform their duties. Now the question arises as to whether the judiciary can intervene and take the role of other institutions because they have failed to discharge their responsibilities.
Two more questions arise: Is the judiciary capable of governing and administering Pakistan? And in a democratic set up is it desirable?
Mirror, mirror, on the wall, who is the most efficient of them all?
A serious introspection of the entire judicial machinery is also imperative. Many within the legal fraternity would agree that the lower judiciary is extremely corrupt and inefficient. The level of pending cases and the judgments in the last six decades would attest this fact.
The social system in Pakistan has begun to favour feudalism and the Taliban-style justice because the mainstream judicial system has failed to deliver. If people of Swat and Malakand demanded the imposition of Sharia, the primary reason was not that they were in love with a religious system, but because the mainstream legal system is corrupt, slow and inefficient. Justice in many parts of Pakistan is not only delayed, but also denied.
In fact, Pakistan would not have reached this position had the judiciary, from the lower level to the Supreme Court, discharged its duties justly and efficiently.
Given the fact that Pakistan needs accountability, what is happening presently is not essentially a bad development. This should have, in fact, happened in the late 1970s, if not during mid-1950s. The judiciary should have stood up against Zia and declared his military coup to be unconstitutional. Similar measures should have been taken against Musharraf as well in 1999.
Having started late, will the judiciary now ensure that all the political institutions remain intact and the larger good of the society is not compromised? Judicial activism should help improve the process of governance, and not pit one institution against the other. After using the doctrine of necessity against the military rulers, the same yardstick should perhaps be used vis-à-vis the political leadership as well.