The Narratives of Judicial Revolution
By Faisal Siddiqi
Can Chaudhry Save Pakistan’ by Aitzaz Ahsan is the cover story of Newsweek Pakistan (Sept 13-20 issue). In fact, the cover is quite misleading because this is neither the title of his article (‘Keep the Flag Flying’) nor does this cover title represent Mr Ahsan’s view about the role of the chief justice and the Supreme Court.
But this unintentional misreading of Aitzaz Ahsan captures the hermeneutic problem of the multiple interpretations of the post-March 9, 2007 judicial developments in Pakistan, which have given rise to multiple narratives of ‘judicial revolution’ being constructed by various groups in the country.
From the very outset of the lawyers’ movement and the judicial revolt, the rhetoric of revolution has been a constant battle cry. This revolutionary rhetoric had two distinct meanings for two kinds of groups which composed this movement. For the idealist group, the lawyers’ movement was the Pakistani equivalent to the Maoist movement leading to social and political revolution in Pakistan. For the realist group, the purpose was the restoration of democracy, constitutionalism and an independent judiciary.
For these realists, the revolutionary rhetoric of exaggerated Aitzazian claims (remember his poem) was merely a means to mobilize people. In short, the lawyers’ 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 lawyers’ movement and the judicial revolt — in contemporary discussions — have assumed the discursive status of a continuing revolution, a kind of Trotskyite perpetual revolution. The battle now is about defining this ‘judicial revolution’ and its implications for Pakistan.
Three narratives of this judicial revolution have emerged. Firstly, the legal fundamentalists define and want to use the superior judiciary for a complete restructuring of democracy, the state and society. In other words, a government of and for the media and the urban middle classes but supervised by the superior judiciary.
Secondly, the radicals see the judicial revolution leading to a revolutionary judicial system with radical implications for democracy, the state and society. This is the ‘rule of law’ rhetorical brigade.
Thirdly, the activists see the judicial revolution as involving a radical restructuring of the judicial process leading to major implications for democracy and state functionaries and greater access for the poor and the weak to the judicial system.
With complete ignorance of history, politics and sociology, and no knowledge of comparative judicial history the virgin thinkers of legal fundamentalism are proposing a radical restructuring of the 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 reconstruct 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 Muslim exceptionalism, i.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? What are these people talking about? Which copy of the constitution are they consulting? This is classical Orwellian doublespeak in which judicial unconstitutional dictatorship becomes democracy and the unconstitutional removal of civilian governments becomes innovative constitutional theory.
With an exaggerated importance given to judicial developments, the radicals propose to locate the judicial institution at the center 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 the state and society in the country. In simple terms, the rule of law and constitutionalism are seen as the major — if not the sole — answers to all ills facing Pakistan, e.g. terrorism, provincial autonomy, military rule, economic under-development, lack of good governance, etc.
The radicals, unlike the fundamentalists, do not want to subjugate other institutions but rather have a superiority complex about the judicial system being able to solve more and 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 them (e.g. Balochistan) nor should every problem be solved through them (e.g. the price of sugar). Thirdly, social and political changes are slow processes and these processes cannot always be accelerated through judicial means.
A belief in the radical restructuring of the judicial process to increase the access of the poor and the weak, a binding commitment to safeguarding civilian government against military interference and to solving state and societal problems whenever practical and legitimate, is the narrative of judicial revolution which judicial activism proposes.
This judicial activism accepts 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 Honorable 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 superior courts, leading to reformist but stable constitutional regimes?
Or will it go down the unconstitutional black hole of fundamentalism or radicalism? Although the current trends are in favor of judicial activism, only constant vigilance, critique and resistance can avoid the dangerous path to the Orwellian doublespeak of labeling the unconstitutional as constitutional.
