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.