“The doctrine of independence is not to be raised to the level of dogma so as to enable the judiciary to function as a kind of super-legislature or super-executive.”

Alladi Krishnaswami Ayyar, member of the drafting committee of the Indian constitution.

THE survival and consolidation of parliamentary democracy in Pakistan hinges on how the emergent judicialisation of politics is dealt with and curtailed in the near future. Judicialisation refers to the profound shift in power away from the elected and accountable institutions and towards higher courts.

At the heart of the judicialisation process lies the establishment of constitutional courts or the active pursuit of judicial review powers. As a result, higher courts acquire the necessary authority to strike down primary and secondary legislation and thus play a crucial role in policymaking and governance. However, such excessive powers fly in the face of the principle of popular sovereignty as well as the separation of constitutional powers.

For the last couple of years, we have been witness to increased judicial assertiveness and activism on the part of superior court judges. Our superior judiciary has intervened on a host of issues, questioning commodity prices, key executive appointments, Haj quotas and parliamentarians’ educational degrees. Crucially, the courts have taken partisan stands that are typically associated with political parties.

The rise of an activist judiciary in Pakistan is often depicted as the victory of the rule of law, or what more generally may be called a ‘rights revolution’. However, scholars of critical legal studies view judicial empowerment as a global trend linked to the strategy of state elites to preserve their hegemony against evolving electoral majorities.

Ran Hirschl, the renowned American law scholar, contends that conscious judicial empowerment occurs when traditional state elites believe they are partially losing their power in democratic transitions. Accordingly these elites look to the judiciary — which shares their ideological and cultural propensities — to be sympathetic to their hegemonic interests.

Turkey and Thailand in Asia represent two vivid examples of how judicial interventions help state elites impose political limits upon parliamentary majorities and thus redefine democracy itself.

In Turkey, formal judicial empowerment occurred twice during military dictatorship. After the coup d’état of May 1960 the Turkish martial law regime empowered the judiciary through the establishment of a constitutional court. The Turkish judiciary was again reconstituted when the so-called Republican Alliance broke down and martial law was imposed in the 1980s.

As a result, Turkish judicial institutions were simultaneously brought under tighter control as well as empowered to perform the role of co-legislator and arbiter of politics. The Turkish constitutional court’s ruling on the headscarf clearly demonstrates its self-perception as the guardian of the unitary state and the vanguard of Turkey’s secular crusaders.

Thailand is a case of straightforward politicisation of the judiciary. Since the crisis of 2006 the decisions of top judges have drastically impacted the Thai political landscape. Among the high-profile political decisions made by the higher courts include annulment of the general election of April 2006, the dissolution of major political parties, the banning of popular leaders and the ousting of two prime ministers. Remarkably, the constitutional court found Mr Samak Sundaravej — the second elected prime minister dismissed from power — guilty of a conflict of interest for hosting a popular cooking show on television.

Many South-East Asia experts suspect that the Thai judiciary has become a proxy for state elites representing the palace, the garrison and the bureaucracy. The Thai higher courts have played an instrumental role in kicking out popular democratic forces from the electoral realm and engineering a divisive politics in which conflict is widespread.

The case of Indian judicial activism is not dissimilar. From the very inception of the state, the Indian judiciary has tried to limit the legislative powers of the Indian parliament. However, the latter has jealously guarded its legislative powers and brought forth the question of judicial accountability.

In the 1950s the Indian judiciary struck down land-reform legislation by invoking the argument of the basic structure and inviolability of fundamental rights. The Indian parliament considered the court ruling a legislative and policy making rather than a judicial function. Later it amended the constitution in order to make its legislations immune from judicial review. The Ninth Schedule created through the first constitutional amendment helped the Indian parliament shield its amendment and policy making powers.

The judicial assertiveness of higher courts currently on show in Pakistan is unprecedented. It would be premature to predict the political consequences of this new-found judicial activism. However, some serious risks need to be illuminated. First, judicial activism in policy making and governance comes at a heavy cost to ordinary litigants seeking justice (over a period of several years). In recent months there have been a plethora of news reports detailing the rising frustration of litigants due to prolonged delays in cases being heard. Second, unrestrained judicial activism can trigger a struggle for supremacy between the judiciary and the other two branches of the government. Last but not least, the judiciary can be politicised if its decisions pertaining to partisan politics fail to secure public acceptance.

We have had enough celebration of judicial activism. It may now be the appropriate time to learn judicial restraint in the best interest of the judiciary itself and of the democratic polity.

The writer teaches at Quaid-i-Azam University, Islamabad.