The Counsel


Judicial Revolution

By Faisal Siddiqi

“Can Chaudhry Save Pakistan” by AitzazAhsan was a cover story of Newsweek, Pakistan(September 13 & 20, 2010, issue). In fact, the cover is quite misleading because this is neither the title of his article [‘Keep the Flag Flying’] nor does thetitle represent Aitzaz’s view about the role of the Chief Justice and the Supreme Court. Instead, this unintentional misreading of Aitzaz captures the hermeneutic problem of the multiple interpretations of the post March 9th, 2007, judicial developments in Pakistan, which have given rise to multiple narratives of ‘judicial revolution’ being constructed by various groups in Pakistan.

From the very outset of the lawyer’s movement and the judicial revolt, the rhetoric of revolution has been a constant battle cry. This revolutionary rhetoric had two distinct meanings, for the two types of groups that hadcomposed this movement. For the idealist group, the lawyer’s movement was the Pakistani equivalent to the Maoist movementleading to social and political revolution in Pakistan. For the realist group, the purpose was the restoration of democracy, constitutionalism and an independent judiciary. For therealist, the revolutionary rhetoric of exaggerated Aitzazian claims [remember his poem] was merely a means to mobilize people. In short, the lawyer’s long march was not really a long march but merely a linguistic expropriation of Mao’s long march.

With this history of revolutionary rhetoric, the lawyer’s movement and the judicial revolt,in contemporary discussions, has assumed the discursive status of a continuing revolution, a kind of Trotskyite perpetual revolution. The battle right now, is about defining this ‘judicial revolution’ and its implications for Pakistan. Three narratives of this ‘judicial revolution’ have emerged. Firstly, the ‘legal fundamentalist’ define, and want to use, the superior judiciary for acomplete re-structuring of democracy, state and society. In other words, a government of, and for, the media and the urban middle classesbut supervised by the superior judiciary. Secondly, the ‘radicals’ see the ‘judicial revolution’ leading to a revolutionary judicial system with radical implications for democracy, state and society. This is the ‘rule of law’ rhetorical brigade. Thirdly, the ‘activist’ see the ‘judicial revolution’ as involving a radical re-structuring of the judicial process leading to major implications for democracy and state functionaries with better judicial access for the poor.

With a complete ignorance of history, politics and sociology, and no knowledge of comparative judicial history, thevirgin thinkers of ‘legal fundamentalism’ are proposing a radical restructuring of state and society through judicial means in which the dictatorship of the military or the proletariat is replaced by the dictatorship of the judiciary through ‘constitutional means’.The flaws in this theory are obvious. Firstly, the problem is not of governance but of a collapsing Pakistani state structure which is losing its three sources of power i.e. legitimacy [losing representational and moral authority], infrastructural power [crumbling institutions] and coercive power [losing its monopoly over violence]. No judicial system can radically re-construct the state because the judicial system is fundamentally dependent on the state itself for the implementation of its orders. Secondly, no judicial system in the world has ever undertaken such an exercise. Surely, such thinking is a part of the general problem of Muslimexceptionalismi.e. we are Muslims, we can do what no one has done before. Thirdly,. how can a civilian government be dismissed through ‘constitutional means’ by a judicial verdict? Which copy of the constitution are they consulting? This is classical Orwellian doublespeak in which judicial unconstitutional dictatorship becomes democracy and unconstitutional removal of civilian governments becomes innovative constitutional theory.

With an exaggerated importance to judicial developments, the ‘radicalist’proposes to locate the judicial institution at the centre of socio-political change in Pakistan. Not only will the judiciary revolutionize the judicial system but it is critical to the growth of democracy and development of state and society in Pakistan. In simple terms, rule of law and constitutionalism is seen as a major, if not the sole, answer to all ills facing Pakistan e.g. terrorism, provincial autonomy, military rule, economic under-development, governance, etc. The radicals, unlike the fundamentalist, do not want to subjugate other institutions, but they rather have a superiority complex about the judicial system being able to solve more of societal problems leading to an extreme judicialization of politics. With sympathies, the flaws in this theory are also well documented in comparative judicial history. Firstly, there are severe limits to what the judicial system can do in a collapsing state structure including a weak judicial structure. Secondly, judicial means are not always desirable because not every problem can be solved through judicial means [e.g. Baluchistan] nor should every problem be solved through judicial means [e.g. price of sugar]. Thirdly, social and political change are slow processes and this process cannot always be accelerated through judicial means.

A belief in the radical structuring of the judicial process to enlarge the access of the poor, a binding commitment to safeguarding civilian government against military interference and to solvestate and societal problems, whenever, practical and legitimate, is the narrative of judicial revolution which ‘judicial activism’ proposes. Thisjudicial activismaccepts the flaws in its judgments and actions but always strives for further radical reforms. This form of judicial activism is the current jurisprudence and dominant narrative of the Honourable Chief Justice and the Pakistani superior courts with only minor ad-hoc hints of radicalism.

Will the current judiciary continue on the path of judicial activism of the US Supreme Court of Earl Warren, and of the people-friendly Indian superiorcourts, leading to reformist but stable constitutional regimes? Or will it go down the unconstitutional black hole of legal fundamentalism or radicalism? Although the current trends are in favour of judicial activism, only constant vigilance, critique and resistance,can avoid thedangerous path to the Orwellian doublespeak of labeling the unconstitutional as constitutional.

The author is a Partner at Malik, Chandhry, Ahmed, Siddiqi & Waheed, Advocates, Barristers & Attorneys Based in Karachi.