Judicialization of politics

Judicialization of politics means that courts exercise judicial power to decide political questions. Superior courts in Pakistan enter into the political thicket in the belief that they are entrusted with enforcing the constitution as ordained by their oaths and thus have the jurisdiction to decide issues with huge political content and consequence. Does it help the system?

Politics now involves multiple stakeholders. For many it is a business or profession. For other institutions and political elite any decision by the courts that affects political process and its outcome and has the potential of affecting the working and fate of the state then an immense interest is shown all across.

A decision, even if taken with sincere intentions and in accordance with law and the constitution, is bound to be criticized due to the very nature of the matter and interest involved.

Moreover, because the political culture and institutions have not been allowed to grow independent of aid(s) and interventions, the superior courts have been seemingly acting to save political institutions from a complete collapse and return to non-political means of governance. But political institutions remain vulnerable.

When constitutional institutions compete with each other over the custody and protection of the constitution to protect constitutional values, basic structure of the constitution and political institutions and even the constitution itself then intentions should not be doubted even if foreign interpretive nuances and doctrines are invoked in support of the outcome of political cases.

A debate about a recent opinion of the Supreme Court on the interpretation of Article 63 A of the constitution given on a presidential reference under article 186 of the Constitution and a petition filed by the Bar Association in the backdrop of defections and consequent regimes changes through no confidence motions has been started amongst the legal fraternity and informed public.

In 1955 an opinion was also given on a reference filed by the Governor General Ghulam Mohamed that derailed democracy in Pakistan. This time around however a potential derailment of the system seems to have been avoided through a judicial intervention and interpretation. The majority of the judges inter alia opined that votes of members of national/provincial assemblies who disobey and defect from their own parties are to be discarded. This part is under a discussion.

The majority opinion, according to its critics, amounts to a rewriting of the constitution because the interpretation placed upon Article 63 A goes beyond the letter of the constitution and justifies its conclusions on invisible and unwritten principles.

It is argued that under article 95(6) of the original constitution the exclusion of votes of defecting members was expressly provided and therefore there had to be an express provision in the constitution to that effect. It cannot be read into the constitution.

It is further asserted that the practice of reliance upon principles, doctrines and invisible and unidentified rules from other constitutions and jurisdictions should not be adverted to and made the basis of judgements and opinions lest it becomes a precedent and followed by the judges who have the tendency of venturing into unchartered waters. That will undermine the judicial process.

The majority opinion is supported by those who are familiar with American and continental jurisprudence where realists view and interpret constitution in the light of contemporary history, events and circumstances and base their reading of the constitution upon their experiences as according to them the life of the law has been experience and not the logic, as axiomatically put by Oliver Holmes Jr. in his classical work, the Common Law.

Moreover, constitutional experts including Harvard professor Lawrence Tribe also believe in an invisible constitution, values and rules enshrined in the constitution. Indian Supreme Court identified them as the basic structure of the constitution comprising of several identifiable fundamental values that a constitution protects. The doctrine of basic structure is now recognized and accepted in Pakistan.

The state of democracy in Pakistan and the choices people have to live by and under the constitution is well known. An imminent peril caused by multiple and constant factors lurks to undermine liberties and constitutional institutions and values. How it can be saved?

Political questions and courts: Every modern constitution has two main parts. It contains fundamental rights and a mechanism/jurisdiction for the enforcement of those rights. The other part provides for political institutions which include parliament/legislature and the executive that may be headed by a president or a prime minister.

These are elected offices. In so far the first part is concerned Courts are basically arbiters between people and those two institutions, legislature and the executive, which by the nature of powers exercised by them are generally found transgressing their powers and consequently impinge upon the rights of people.

To enforce those rights Courts have jurisdiction and the power to put a judicial gloss on those rights to expand their scope so long the coercive apparatus of state is not rendered ineffective that is necessary to maintain an order in the society.

Courts in Pakistan historically adopt the route of fundamental rights for deciding political questions as it gives greater legitimacy, acceptance and to overcome the objection of political question doctrine. In the grand scheme of the constitution it needs to be seen whether these rights should be read along with the working of the political institutions and rights.

Fundamental rights are individualistic in their content. Insofar as other part is concerned that deals with the powers of other branches of the government. Courts have to be slow in assuming jurisdiction for several reasons. It is precisely for this reason that to preserve the impartiality and integrity of the judicial process that an advisory jurisdiction has been conferred upon the Supreme Court under Article 186 whereunder the Supreme Court renders an opinion upon a reference from the president. This opinion used to be non-binding prior to Hisba Bill case (2005).

It would be recalled that petitioning to the Supreme Court under its original jurisdiction started with the dissolution of National Assembly and dismissal of Nawaz Sharif-led Federal Government in 1993. The Supreme Court having made wide ranging observations in the Benazir Bhutto case (1988) provided a basis for a direct petition under Article 184(3) of the constitution in the dissolution case.

Every Court likes expansion of its powers. In the process however the Court’s authority and impartiality started to be disputed by the political classes. The Supreme Court has set out parameters for references and opinions thereon in a more recent opinion on a reference under Article 186 (2021), which are closer to the intent of the constitution makers.

Growth of Political Institutions: The Court with its continued entertainment of petitions and references raising political questions in the belief of helping to resuscitate, protect and save political institutions and the constitution may have unwittingly undermined the political process. The experience tells us that the life of politics and political institutions stems from the legitimacy of the ballot-box that also decides the fate of nations and leaders.

Pakistan’s political process is continued to be disrupted and put on artificial ventilators and allowed to move on crutches. It needs to stand on its legs and work out its health, safety and integrity. Only in this way would a political culture and political institutions take roots in Pakistan.

The state institutions and the Courts must redefine their role in the light of the letter of the Constitution and facilitate the process of political legitimacy and accountability by guarding against manipulations and corrupt practices. It is time to believe in the political judgment of the people.

Copyright Business Recorder, 2022