Supreme Court has 're-enchanted' democracy in Pakistan

On June 19, the Supreme Court of Pakistan barred the country's elected chief executive, Yusuf Raza Gilani, both from being a member of parliament and prime minister on the basis that he had been guilty of contempt of court and had thereby brought the judiciary into ridicule. The court's decision was subsequently subjected to severe criticism in the international press as well as by Pakistan's liberal intelligentsia in leading English-language publications; the court's action was portrayed as essentially anti-democratic and "political" in nature.
The international response to this action is understandable. Every event with political consequences is analysed solely in the light of likely impact on the "War on Terror" or the NATO involvement in Afghanistan. As such, any manner of instability in Pakistan is problematic.


In voicing such a strong reaction to the court's decision, however, Pakistan's small but disproportionately influential liberal elite displayed its (post)colonial hangovers. The discourse surrounding the court's actions was framed in the language of parliamentary supremacy and separation of powers in a manner reminiscent of AV Dicey, who at the turn of the 20th century shaped, as much as described, the dominant view of British constitutionalism.
This is by no means exceptional: post-colonial elites everywhere tend to perpetuate political ideologies fermented by their former colonial rulers long after they lose currency in their original climes. And this is no idle fancy for irrelevant theory: the deeper interests of these elites are vested in the continuation of the forms of politics and state structures legitimated by such discourses. So it is with Pakistan.
An old battle continues

The tussle between the judiciary and the executive is not a recent affair. Nor are the tensions confined to the highest levels of the political executive. Since the restoration of Justice Iftikhar Chaudhry as the Chief Justice of Pakistan in March 2009, the Supreme Court and the elected government of Pakistan have been entangled in a fractious and destabilising dynamic. The Supreme Court has adopted an aggressive posture towards governmental corruption, which has undermined the democratic credibility and popularity of the incumbent political party.
In particular, the court has relied on its self-styled powers to initiate cases - based on media reports - to highlight the involvement of several federal ministers in scandals of corruption and malpractice. The court's decision to revive long-standing bribery and money-laundering charges against Asif Ali Zardari - the country's president, leader of the Pakistan People's Party and widower of the late Benazir Bhutto - has proven to be the greatest source of friction.
The refusal of former Prime Minister Gilani to write a letter to prosecutors in Switzerland in accordance with the court's directions is what landed him in the dock on contempt of court charges in the first place, leading ultimately to his disqualification. The likely refusal of his replacement to comply with the court's order will ensure that the institutional struggle continues.

In response to the court's actions, the government has attempted to politicise the court's actions, and portray it as biased and vengeful, with considerable success. The government has highlighted the constant threat to "democracy" at the hands of the country's powerful military, which supposedly gets magnified by the court's destabilising actions. The tactics adopted by the political government in response to the court's scrutiny of corruption charges have increasingly made the state's civil apparatus into the site of the institutional tussle between the court and the elected executive.
On the one hand, the government has relied on its powers of appointment, transfers and promotions of senior bureaucrats and investigative agency officials to thwart the court's inquiries. It has sought to remove key officials entrusted with the responsibility to investigate, prosecute and report on aspects of corruption scandals, and replace them with more pliant individuals.
On the other, the court has retaliated by prohibiting such transfers or removals, and protecting the relatively more independent officials from any pressures that the government might bring to bear on them. The government has also adopted a number of tactics intended to cause delay, including changing lawyers at key stages, demanding adjournments and filing multiple interlocutory challenges, appeals and review petitions. The vast majority of cases have thus been stalled for months, if not years, and the court's inability to expeditiously pursue the charges has weakened its position.

A 'political' court?

As a result of governmental push back and the mobilisation of its key constituencies, the court is beginning to be seen by some as acting "politically". Politics is a dirty word in Pakistan. It connotes unprincipled, self-serving and often corrupt actions of people seeking a share in state power and resources. At best, it suggests amoral compromises and shifting loyalties to parties and positions that characterise electoral politics in Pakistan. If the court comes to be seen as yet another "political" player, its credibility will be seriously damaged. Leading lawyers and members of the country's "civil society" - in reality a narrow liberal elite - are therefore cautioning the court to avoid a relentless pursuit of corruption scandals and to leave such matters to political, rather than legal, accountability through forthcoming general elections.

There is, however, another sense in which the term "politics" can and ought to be used in public discourse. In a more structural context, the term denotes engagement with processes that shape governance structures, practices and cultures. In that sense of politics the court has a legitimate role to play. Through its judicial review jurisdiction, the senior judiciary has developed a certain understanding of the nature and defects of the post-colonial state's structures and its (unhealthy) relationship with certain segments in Pakistan's pluralistic social mosaic.

Far from being the product of personal likes or dislikes, or merely the hangover of the recent Lawyers' Movement for the restoration of the Chief Justice, the Supreme Court's jurisprudence reflects deeper ideological commitments, in light of which the court sees governmental corruption, absence of legal accountability and excessive amounts of undue influence exercised by the elected government over state apparata - bureaucracy, police and regulatory agencies, etc - as the most serious governance malaise in Pakistan.

One might disagree with the court's diagnosis and/or prescription, but to argue that the court is acting politically - in the narrow, partisan sense - is to grossly misrepresent the current tussle between the judiciary and the elected executive.

By indulging in the discourse of parliamentary supremacy and separation of powers, it is Pakistan's liberal intelligentsia that is asking the court to play politics in the narrow sense by deciding cases in accordance with calculations of likely impact on electoral processes, rather than on the basis of its established course. Furthermore, in taking this anti-court position, this small but articulate and disproportionately influential segment of Pakistan's society has also betrayed its own deeply held ideological commitments and vested interests.
Their commitment is to reallocate greater power to certain segments within the progressively consolidating elite and state-classes - that is, towards the political parties that overwhelmingly represent rural landed, urban mercantile and professional classes, and away from the military-bureaucratic complex that also draws largely from the same classes. As such, the structural politics of Pakistan's liberal intelligentsia is deeply implicated in an internecine tussle between the country's elite classes over the control for resources and privilege.

The Supreme Court is no saviour of Pakistan's poor. No court can be. Nonetheless, it is the only institution in Pakistan's state structure which has continued to scrutinise and highlight certain aspects of elite privilege during Pakistan's most recent experience with electoral democracy. It has thus opened some possibilities for more progressive forms of politics and aspirations of substantive democracy. To borrow from Upendra Baxi's description of an earlier era of judicial activism in India, the court has thus "re-enchanted democracy" in Pakistan. Without even this limited intervention, governance under an elected government would have remained as much an elite affair as it did in previous eras of military rule.
Moeen Cheema is a lecturer in law at the Australian National University's College of Law, specialising in the contextualised history of the law and courts in postcolonial Pakistan.