In a previous post, Vikram drew our attention to recent events in Pakistan, and invited comparisons to debates about judicial activism in India. Even the most bitter critic of judicial activism (in India or anywhere else for that matter) would not wish for the turn that events in Pakistan have taken over the past week. Today’s Indian Express carries a piece by the noted constitutional lawyer, T.R. Andhyarujina, who has in the past been highly critical of judicial activism in India, especially in PIL cases. (See, for instance, his 1992 book which remains a classic work that even supporters of PIL and judicial activism regard as making valid criticisms). In this piece, Andhyarujina analyses recent events in Pakistan, places them against the backdrop of the history of the judiciary in Pakistan, and also draws lessons for nations beyond Pakistan. While the whole piece is an interesting read, here are some extracts:
The emergency declared by Pervez Musharraf in Pakistan must be the strangest emergency ever declared in the catalogue of such emergencies by authoritarian rulers. For the first time an emergency has been declared because an activist judiciary is accused of having created conditions by which government cannot be carried out in accordance with the constitution.
In the predominant part of the official text of the proclamation, Musharraf complains that some members of the judiciary were working at cross purposes with the executive and legislature; of increasing and constant interference by them in government policy and functions, including that of combating terrorism by ordering the release of militants; of taking over the administration of the government. He complains of the order of the country’s supreme court nullifying his order of suspension of Chief Justice Ifthikar Chaudhary and the humiliating treatment being meted out to government officials by the judiciary during court proceedings, which had demoralised the bureaucracy.
It does not require much political acumen to conclude that the real intention of the emergency is to muzzle the supreme court which, it was apprehended, would pronounce an adverse verdict on Musharraf’s election as president in the next week. The actions which followed the proclamation amply prove this.
Immediately after the proclamation, a bench of seven judges of the supreme court declared it illegal. We do not know how and at what time this bench took cognisance of the proclamation. Musharraf retaliated by dispensing with the services of Chief Justice Ifthikar Chaudhary and placed him and six other judges under house arrest. Later Justice Hameed Dogar, fourth in line of seniority, was administered the oath as chief justice by Musharraf under the new provisional constitutional order. The government also appointed new chief justices of the Sindh, Lahore and Balochistan high courts simultaneously. Later Chief Justice Dogar revoked the order of the seven-judge court declaring the emergency illegal and cancelled the hearing of the cases pending in the supreme court against Musharraf. This is the most surprising and bizarre development in the history of the judiciary of Pakistan. In the past, the Pakistan judiciary, with rare exceptions, had displayed a general timidity and compliance to the regime of military rulers of the country that had governed Pakistan for all but 12 years. The judgments of the supreme court were protective of the military rule and unresponsive to the basic rights of the citizens by inventing recondite doctrines of revolutionary legality and state necessity to legitimise military rule. After providing a brief overview of earlier and more recent trends in decision-making of the judiciary in Pakistan, Andyarujina concludes:
After all this, one may have to revise Hamilton’s famous statement that of the three branches of government the judiciary is the weakest, having neither the power of the sword nor of the purse. The Pakistan experience shows that it required an emergency to control the judiciary.
Though the proclamation stated judicial activism as a reason and Musharraf said the same thing in his television address, Chaudhary Shujaat Hussein was quoted as saying that the primary reason was really the one case challenging Musharraf’s recent ‘election’ as President that triggered the event. Apparently, a friendly judge passed on information that the judgment would go against him and was likely to be unanimous. “After that, there was no option”, Hussein said. That would have undoubtedly been a major setback for the General, one that he would have found it even more difficult to recover from. The more pertinent question therefore ought to be whether the Court’s acceptance of this particular case and its decision to rule on it amounted to activism.
Apparently, the purge is not limited to the SC. It was reported that even HC judges have been removed and new Chief Justices of the High Courts administered oath with military personnel standing in the background.
Thanks, Dilip, for your inputs, and apologies for not responding to your previous comments on other entries.
You are of course right to point to the difference between Musharraf’s real and stated motivations. But what is unusual even about the stated motivations is the direct pinning of blame on the judiciary. What Musharraf also does is blame the judiciary for releasing suspected extremists – the Court could well have done that along established notions of protecting civil liberty, but Musharraf seeks to give that a different colour. What is interesting about this claim is that it will have resonance in other jurisdictions – indeed, even the Bush administration was reportedly quite miffed at how the Guantanamo Bay decisions turned out. In making this the stated basis of his actions, Musharraf may well be starting a trend that calls for reining in judiciaries across the world, and that is the point I think Andhyarujina also seizes upon. As you know, judiciaries around the world have been grappling with balancing national security concerns with those of individual liberty and fairness in terrorism cases, and Musharraf’s views on this issue may not be that much out of step with those of executive wings of government elsewhere.
Today’s news reports point out how hollow Musharraf’s claims are, because among those arrested in the immediate aftermath of the proclamation were not the people who had been released by the Court(or other extremists), but, instead, lawyers and civil libertarians from across the country. In fact, Musharraf seems to have struck a deal with the Taleban and released a number of suspected extremists to cut a deal with the Taleban. Here again, the difference you point us to (between stated and real motivations) is important. Nevertheless, I find the stated reasons interesting in themselves for pointing to Musharraf’s perception of what arguments may carry weight with his domestic and international audiences.