The Head and Hoof of the Law
Judicial Activism or Executive Excessivism, or Both
By Mohammad Ashraf Chaudhry
Pittsburg , CA
Heroes and traitors both have arisen more from the defiance of law rather than from its docile compliance. And this is the biggest irony or joke of history.
Laws have brought freedoms; and laws have confiscated them. Obedience to laws has brought prosperity to people: it often has also prolonged their period of adversity as well. “History bears witness that, whenever the ruling powers took up arms against freedom and right, the court rooms were used as the most convenient and plausible weapons”, writes A.G. Noorani in the introduction of his book, “Indian Political Trials.”
“Next to the Battlefields, it is in the courts that some of the greatest acts of injustice in the history of the world have taken place”, says Noorani. “Lost is our old simplicity of times. The world abounds with laws and teems with crimes”, said the associate justice Potter Steward of the US Supreme Court once so aptly.
“I was never ruined but twice - once when I lost a law suit, once when I won one”, said the French philosopher, Voltaire. And he was not very wrong. The legal somersault going on in Pakistan these days confirms the veracity of what is under discussion here. Pakistan was let down more by the Bar than by the politicians and generals combined. The latter (politicians and dictators) did whatever they felt like doing in/with Pakistan because the former (Judiciary) willingly acted as their poodle. The weekly Outlook of February 2, 1974 puts it right, “Members of the legal profession all over the world are custodians of the rule of law … but in Pakistan the best legal brains offered to stabilize dictatorial regimes”.
Chief Justice Mohammed Munir in 1954 set the pattern by siding with the government rather than with the people or parliament; Mr. A.K. Brohi provided the needed Viagra to Ghulam Mohammad; Mr. Manzur Qadir remained handy and available to Ayub Khan; Mr. Mahmud Ali Qasuri invented a unique formula for all the dictators which they later religiously used - a martial law constitution; Mr. Sharif-ud-Din and Brohi both vied with each other, and even fought sometimes when it came to salvaging and serving Zia; two Pirzadas, namely Sharif and Hafeez, remained at the beck and call, ready to play a Daniel to Musharraf, whenever the need arose.
Democracy which acts as a shock-absorber for a fledgling nation, virtually became a concubine of the dictators solely because of these law-smiths. After all, parsing and playing with words is an art most callously practiced in the legal world. A blank, white lie becomes, “misspoke”, glaring and clear instances of corruption become, “mistakes’; graft becomes, “gift’, and every blot and blemish gets washed when the “Doctrine of Necessity”, gives birth to PCO’s, LFO’s and NRO’s. These viruses were not invented by the generals; they were the brain-children of the men of the Bar. One right step; one stint of courage; one bold defiance of a dictator by one man, CJ Iftikhar Chaudhry, and see the difference.
In a high-school US Government text book, there is a cartoon of an apple tree. The tree is shown representing the Government. It has been pruned so heavily and mercilessly that what is left of it is just its bare trunk, standing in the midst of its chopped off branches. The caption written under it is, “How muchpruning can we do and still get apples”. The people want the apples as well as the shade. The Judiciary and perhaps the people both want to prune the government-apple-tree as heavily as they can without wanting it to stop bearing apples. The government, on the contrary, wants fertilizers, (funds), and its growth in all directions, realizing not that “cut is the branch that goes too high”. The phenomenon is not restricted to countries like Pakistan and India. It is everywhere.
The other day, Robert Barnes of Washington Post, in its January 29, 2010 edition, captioned one news item as “Justice acted injudiciously at speech, some say”. What had happened was that Justice Alito “shook hishead when President Obama criticized a Supreme Court decision”. As we heard, President Obama in his State of the Union Address took a shot at the Supreme Court while its black-robed six members (Justices) sat in the front and second rows. “With all due deference to separation of powers, last week the Supreme Court reversed a century of law that, I believe, will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections”.
“Not true, not true,” he (Justice Alito) appeared to say… other lip-readers have a slightly different version…as he shook his head and furrowed his brow. “Activist US Supreme Court Makes It Official. We’re Now ‘The Corporate States of America”, ‘We the People’ lose, “You the Corporation’ win…”. Such catchy phrases also instantly began appearing in the papers. Even the dissenting Justice, John Paul Stevens in this ruling, could not hide his concerns, “The court’s ruling threatens to undermine the integrity of elected institutions across the nation”. Justice Kennedy in this 5 to 4 decision said, “The Court has recognized that First Amendment protection extends to corporations”… and Justice Scalia, equating corporate money with free speech wrote, “We should celebrate rather than condemn the addition of this speech to the public debate”. As one can see, people are asked both to celebrate as well as mourn, depending upon which side of the aisle one stands.
The dissenting Justice Stevens worded his concerns in such strong words as, “While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics”.
The problem of judicial activism vs. Executive excessiveness is chronic. When money comes in between the Deck and the Docket, things get even worse. One cartoon published in the book titled “Democracy… for the Few” by Michael Parenti has a caption on page 126, “You have a pretty good case, Mr. Pitkin. How much justice can you afford?” Supreme Court Justice Hugo Black once noted that there “can be no equal justice where the kind of trial a man gets depends on the amount of money he has”, ( Griffin v. Illinois (1956).
According to the New York Times of June 4, 1993, “Federal and state courts reverse 40 percent of all death sentences on important procedural or constitution grounds”. According to Jessica Williams’s book “50 Facts…” “there are 67,000 people employed in the lobbying industry in Washington DC- 125 for each elected member of Congress”. Former speaker, Tip O’Neil once said, “The grab of special interests is staggering. It will destroy the legislative process”. Jack Anderson even wrote a book, titling it, “Lobbyists: The Unelected Lawmakers in Washington”. President Obama was exactly alluding to this newer strength that these lobbyists would be gaining through this ruling while carving their influence on the legislative. (To be continued)
