Since the Lawyers’ Movement emerged over two years ago in the aftermath of Musharraf’s dismissal of the chief justice, Iftikhar Chaudhry, Pakistan’s judiciary has become emboldened–even brazen. In a country where the courts are usually pliant to the elites in power–whether the military or the feudal lord politicians–a stronger and more independent judiciary is probably, on the balance, a good thing. Corruption has been often overlooked; dictatorships have been too often approved; and politicians have been far too often comforted through de facto immunity.

But the rise of the Pakistani judiciary is also somewhat worrying. Firstly, it isn’t entirely clear if the judiciary is actually independent. Some argue that the country’s army and intelligence services backed the chief justice’s recent decision to declare illegal the National Reconciliation Ordinance (NRO), reinstating the many criminal charges ministers in the current PPP-led government face. However, even if we assume that the judiciary is acting independently, its expansive agenda threatens the system of parliamentary democracy. The chief justice has issued a series of suo moto actions, which stink of judicial activism. To those of you unfamiliar with the notion of suo moto (on its own motion, in Latin), it is a concept in South Asian common law jurisdictions that permits the High Courts to take actions on issues that it feels neither the executive, the legislative, nor even the lower courts are pressing upon. Just today, the Supreme Court issued a suo moto motion, appealing to the State Bank of Pakistan (the central bank) to investigate and recover loan defaults and writes-offs in Pakistan since 1971. In a parliamentary democracy, where the powers of the judiciary are merely to adjudicate and not to dictate policy, this should not happen. Intervening with the independence of the State Bank, and that too without any citizen having filed a case to do so, plain and simple oversteps the bounds of the judiciary.

Then there’s Justice Chaudhry’s crusade against high sugar prices: the Supreme Court intervened when it believed that the Competition Bureau was not doing enough. The Supreme Court backed the Lahore High Court’s demand to fix the price of rice at Rs. 40/kg. Justice Oliver Wendell Holmes once wrote in a dissenting opinion that “a Constitution is not intended to embody a particular economic theory.” It follows that a Constitution is not intended to set prices based on a delusional estimate of market rates.

Now, many in Pakistan don’t find the trend disconcerting. They believe it is “heartening that judicial activism has come to stay in Pakistan.” Professor Aqdas Afzal of the Lahore University of Management Sciences wrote “[t]he restoration of the Iftikhar Chaudhry Court has not only provided a balance between the powers of the state and the society – with the society being successful in this instance – but has also provided a much needed “success story” for the citizens of this country.” I do agree that restoring the balance of power between the legislature, the executive, and the judiciary is essentially beneficial. However, we must keep in mind the long run implications of an unelected judiciary dictating policy and undermining the writ of parliament. And a judiciary especially emboldened with the powers of suo moto risks overstepping its boundaries and could in the end lose all its hard earned power.

Advertisements