Judicial activism is not quite as black and white as social media would have you believe
Since the “Baba Rehmat” speech by Chief Justice of Pakistan Saqib Nisar, the Supreme Court has embarked on reform- and activism-oriented peripatetics. The CJP himself takes notice of shabby administrative practices and has on several occasions boxed the ears of administrators. He has also taken to giving direct and indirect responses to politically-motivated speeches by former prime minister of Pakistan Mian Nawaz Sharif. And, the number of suo motu notices has gone up.
In the charged, divisive and partisan atmosphere prevailing in the benighted republic—the divisions exacerbated in no mean way by social media—people have either chosen to lampoon the court or, if they belong to the anti-Nawaz camp, given justifications for the CJP’s and by extension the SC’s activism.
This is neither unexpected nor peculiar to Pakistan, relate as it does to the larger problem not just of how the social media space remains unregulated, but also to the issue of total expression, vox populi, which far from being vox dei, is a terrible bane on which scholars have expended much ink.
Nonetheless, it’s important to try and wade through this minefield.
Let’s consider suo motu. There are two basic arguments here.
The opponents point to the fact that when the highest court takes notice of an issue, its act of doing so creates an anomaly: one, it intervenes in the executive space—for instance, asking the administration or the police to do A or B which may or may not be possible. Two, by taking such a notice it upends the legal process, i.e., the process begins at the apex instead of at the base. Put another way, the court prejudices the process and prejudices its own role as the highest appellate body.
These are important conceptual and practical concerns. However, the proponents believe—and they have many strong examples to cite—that the CJP’s hand has been forced into this situation by governments that are largely dysfunctional and are either incapable of or unwilling to act when they are so required to do (the recent discussion is also to be seen in the wake of multiple cases of sexual assaults/murders where the police and local administrations were either procrastinating or found covering up for influential parties).
There’s also another aspect of the debate: whether courts can make social policy?
That debate continues apace in other countries too, including those where governments generally act better than they do here. In fact, as a Brookings Institution debate pointed out, “Perhaps courts inevitably make social policy–that this is inherent in the power they yield.” In which case, the question then becomes one of “the principles by which we sort out how they should exercise this power.”
Put another way, the issue is more complex than the binary created here. I know of discerning jurists who concede that they support suo motu in certain cases and not in others.
On the surface, this looks like cherry-picking. But it’s not. It is simply an acknowledgment that the device can be useful in some cases but it must be used and resorted to sparingly. That it is an exception and cannot become the norm because its overuse could, and would, make it trite.
Also, any proper debate requires that the issue be freed from the shackles of political biases—i.e., X beats the courts with a stick because he is sympathetic to the Pakistan Muslim League (Nawaz) and Y eulogizes the court because he is either opposed to the PMLN or is also a supporter of the Pakistan Tehreek-e Insaf.
As a non-jurist I have been thinking about the issue and realized that it can be likened to the idea of emergency ethics, which flows from the doctrine of supreme emergency (I use the concept as discussed by Michael Walzer in Arguing about War). Emergency ethics navigates between the absolute rights theory and sheer utilitarianism. Walzer argues that both concepts can be developed in complex ways and while opposition between them can thus be attenuated, it can never be fully abolished.
The essential point about emergency ethics, however, is the feeling of guilt for being forced into a situation that is exceptional and cannot be treated as a norm. The tension increases because the normal rules haven’t been abolished. They are there to provide a constant contrast to the extraordinary. In other words, they are also the constant reminder of normal life, the point whence one came and to which one must return.
The problem in our discussion relates to partisan positions, which necessarily and inevitably survive on the basis of selecting some facts and undermining or ignoring others. Just because X hates Sharif or loves Khan or both and vice versa cannot become the basis for this discussion. Any debate must clearly identify factors that make administrations lazy and callous while pointing to the hazards of the current approach taken by the CJP and the SC. It is possible in and through an objective analysis to do both.
In which case, while we can support the court on a suo motu which responds to widespread public outrage, a case in point being Zainab’s rape and murder, we must do so by knowing, realizing and appreciating the fact that suo motu notices in her or a few other cases can neither provide closures in many more such cases, nor stem the rot on the societal and governance sides. In fact, if anything, such action could make the administrations lazier, goading them into action only when the court takes cognizance of a situation.
Secondly, and that’s the crucial negative side to responding to populism, the court, in getting swayed by the public mood, can begin to lose the distinction between what historian Dr. Ilhan Niaz has called rule of law versus rule of justice. This, to put it in a perspective, is bad and second only to the worse, the mob rule.
Haider is editor of national-security affairs at Capital TV. He was a Ford Scholar at the Program in Arms Control, Disarmament and International Security at the University of Illinois at Urbana-Champaign, and a visiting fellow at the Brookings Institution, Washington, D.C. He tweets @ejazhaider