Feisal Naqvi

Judicial activism vs military activism

In Uncategorized on September 15, 2009 at 2:12 am

There is nothing wrong with the argument for judicial activism. Except, unfortunately, that it is an equally good argument for military activism.

Consider the facts. The basic argument behind judicial activism, stripped of its self-congratulatory verbiage, is that the legislature has failed and that it is now up to the judiciary to ride in and save the day. Otherwise, lives will be lost, rights will be negated, poverty will increase and the ship of state will sail over the edge of the world into the great void. In short, what one finds lurking behind judicial activism is just another dressed up version of the doctrine of necessity.

Please note — and this is important — that there is a big difference between judicial activism and active judicialism. When the Supreme Court demanded that the previous regime produce the missing persons, that was not judicial activism: that was the judiciary’s finest hour. When the Supreme Court struck down the privatisation of the Pakistan Steel Mills, that was not judicial activism. But when the Lahore High Court felt compelled to set sugar prices…well, we’ll come to that later.

The obvious question in response to my argument, well, what’s the difference? How do you draw the line between that which is permissible for the judiciary and that which is not?

Well, you don’t. Or more accurately, you can’t. One man’s activism is another man’s conservatism so drawing lines is an exercise in futility. On the other hand, you don’t really need to draw lines to deal with hard cases: all you need to know is which side of the line a particular case falls upon.

My aim here is not to justify or defend any particular line between principle and policy. Instead, my point is that there is a line out there and it is about time that the judiciary and its enthusiasts recognised that unfortunate fact.

Yes, a functional and active judiciary is vital for the health of a country. But a judiciary is only one leg of the tripod that makes up the government. There is also a legislature out there just as there is an executive branch. And if the legislature and the executive don’t know how to do their job, they certainly won’t learn with someone else doing it for them.

At this point in a column, the discerning reader may rightly expect the writer to enlighten him with a few, pithy examples of judicial activism gone awry. Unfortunately, I can’t. The reason for this is that most of my examples involve stuff that is still pending. And making negative comments on pending cases is still punishable as contempt of court.

The absence of available examples, however, only reinforces my point. Take, for example, the setting of sugar prices. At least so far as the short order is concerned, the decision seems to have been based on the desire of the judiciary to ensure the availability of sugar to poor people. Is this a noble aim? Indeed. But is ensuring the availability of cheap sugar within the domain of the judiciary? Well, on that point, there is certainly more than one view available. But thanks to the appeal pending against the decision of the Lahore High Court, we may not mention any of those alternate views.

The theory behind our law of contempt is that public comment on pending cases is undesirable because it can prejudice the fair adjudication of a matter. To some extent, this is a perfectly understandable position. The problem arises when the judiciary ventures into the domain of policy, especially economic policy. What one finds increasingly then is a bizarre situation in which the most unhinged form of populism is entirely unafraid to express itself but all reasonable people keep their opinions to themselves out of a fear of being prosecuted.

As Justice Nasim Hassan Shah once noted in a different context, zubardast maray aur ronay bhi na dey!

This problem is then further exacerbated by the witches’ brew of talking heads and malicious ignorance that characterises our media. It is no secret that our newly liberated Fourth Estate, for the most part, is struggling to make ends meet. At the same time, the simplest television programme to produce is a talk show because it only involves one anchor and a few members of the chatterati, all of whom are only too happy to voice their opinions on TV. Not surprisingly then, the market is rife with “current affairs” programmes in which the gossip du jour is recycled as penetrating insight.

This media climate makes bona fide criticism of the judiciary doubly difficult. In the first place, any would-be critic has to worry about the possibility of contempt proceedings. Second, voicing any opinion that deviates from populist orthodoxy is to ask for trouble, especially if that opinion is based upon the heresy that the learned gentlemen of the superior judiciary are less than superheroes.

Since this column is likely to be misinterpreted, let me make my position absolutely clear. I am not in favour of judicial activism. I am very much in favour of an independent and fearless judiciary which has no hesitation in holding the feet of errant bureaucrats (and ministers and generals) to the flames as and when they transgress the boundaries of the law.

At the same time, our judiciary needs to realise that it is today the beneficiary of an incredible sequence of events which has vested it with more power and more legitimacy than ever before. That windfall may seem like an endless resource but it is not. And if our judiciary does not rapidly learn the difference between wisdom and pandering to the masses, there will come a time when, like many a lottery winner, they too will be left wondering where the good times went.

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  1. That was a fine piece of thinking and writing. Your comments would apply here, as well as, in Pakistan. The saving grace here is that we can mouth off about stuff that is in the judicial grist mill, which nevers seems to find resolution even after the SCOTUS lays down the law.

  2. “There is nothing wrong with the argument for judicial activism. Except, unfortunately, that it is an equally good argument for military activism.”

    That’s a brilliant line. Great article.

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