The Pakistan Supreme Court has successfully created a constitutional mess that may do more harm than good. Its judicial activism and bravery in defying President Pervez Musharraf’s efforts to humiliate the judiciary and in reinstating the suspended Chief Justice was appreciated in legal circles throughout the world. Its exercise of suo moto jurisdiction to protect fundamental constitutional rights has also been a beacon of light for lawyers in Pakistan and other Muslim countries where state officials commit gross violations of rights with little accountability. Despite these adorable successes, the Supreme Court has begun to venture into political minefields, raising serious questions about the long term sustainability of its judicial activism.
Rights Versus Politics
The Supreme Court’s judicial activism is overdone when it interferes with politics. Of course, rights cannot be separated from politics. And the violations of rights, which the Court must monitor, are related to political forces that determine governmental policies. Yet a responsible judiciary must constantly distinguish between the calculus of rights and the dynamics of politics. The Supreme Court rests on firm ground when it intervenes into public matters to preserve constitutional rights. It treads shaky ground, however, when the Court wishes to engineer political forces for the good of the country or for the greater protection of constitutional order. Engineering political forces through active judicial intervention is, and ought to be, beyond the scope of judicial authority.
Take the October 6 Presidential election. The Supreme Court may exercise its authority to hold whether a candidate holding two public offices, one civilian and the other military, may contest Presidential election. This is no judicial activism. The Court may also rule whether the Presidential election for a five-year term ought to be held before or after general elections of the Electoral College. This is not mere politics. However, the Court’s decision to split the baby between competing political forces has been most prejudicial to the nation’s stability. The Court prohibits the Election Commission from announcing the result of an otherwise validly-held Presidential election. This sort of judicial engineering that throws the future into uncertainty is anything but the protection of rights. It invites forces of disobedience.
According to the Pakistani folk wisdom, which is sometimes superior to untested constitutional interpretations, the best time to stop the cat from drinking the milk is before he drinks the milk. No strategy is effective in squeezing the milk out of the cat’s belly. This folk wisdom dictates that it will be highly adventurous for the Supreme Court to now declare that General Musharraf could not lawfully contest Presidential election. Any such ruling will be harmful to the protection of rights. The time to shoo away the cat has passed.
Politics Versus Politics
The Supreme Court’s judicial activism is even more objectionable when it begins to sort out political competition. When it comes to politics versus politics, a responsible judiciary stays out of it. In the United States, the doctrine of political question provides useful, though imperfect, guidance for the judiciary. The doctrine clears the path for political forces to contest with each other, win, and lose. Judges may have a preferred dog in the fight. The political question doctrine, however, mandates that judges leave dog fights to dogs. Any judicial intervention to tilt the political field for or against a political party is uncalled for. The judiciary loses respect, not gains it, when it imposes its preferences on the political process or when it appears to be supporting or opposing certain political operators.
Applying these insights, it would be appropriate for the Supreme Court not to rule on the constitutionality of the Executive Ordinance under which the Musharraf government has pardoned the alleged crimes of Benazir Bhutto. The Ordinance is most certainly a seamy political transaction between two political operators, Musharaf and Bhutto, who seek power and will do anything to keep it. The deal is even more repellant after Nawaz Sharif’s deportation contrary to the Supreme Court order. Despite these obvious problems with the Ordinance, the Supreme Court must not disturb the Musharraf-Bhutto political deal. By declaring the Ordinance offensive to the Constitution, the Supreme Court will further confuse the political scene, inviting chaos and perhaps military intervention.
Let the general elections in January 2008 sort out the politics.
Ali Khan is a professor of law at Washburn University School of Law in Topeka, Kansas. This story is written for his two sons, Harun and Kashif. He can be reached at: ali.khan@washburn.edu
