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| The judiciary in a constitutional democracy |
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Part II
Wednesday, July 23, 2008
Ghazia Aslam
The first part of this article delineated the contradictory role of courts in Pakistan. This part of the article focuses on the constitutional role of the judiciary in a constitutional democracy. This article also discusses how the current movement can help us get there.
The primary function of the judiciary in a constitutional democracy is to protect the constitution – the sacred contract between the citizens and the government and between different branches of the government. It does so by elucidating and defining the content of the constitution while arbitrating between different parties. In order to perform their function, the judiciary must logically be empowered with the authority to arbitrate future conflicts over the constitution and to overturn any actions of the government that violate it. The courts' impartiality and independence from the other branches of the government also need to be ensured so that the courts can perform their function effectively. Impartiality and independence of the judiciary is not easy to achieve because unlike legislature, court's authority is based directly in the supremacy of the constitution. And supremacy of the constitution is achieved in minds more than on paper.
In order to achieve these characteristics of the judiciary, developed democracies have relied on "the culture of the judiciary." If each judge swears upon taking office to uphold the constitution and the rights of all citizens, self-integrity, peer pressure, and public scrutiny might combine to induce judges, at least at the highest level, to abide by their oath. By setting these standards for promotion, they can help foster the same behaviour in their future peers and at all lower levels. Executive and other government branches also have to learn to accept the role of judiciary in Pakistan's constitutional democracy as the supreme arbitrator of the content of the constitution.
Legislature, for example, has to realize that its purpose is to represent citizens and operate within the structures based on rules defined by the constitution. Representation does not mean unchallenged power. The judiciary protects the citizens should their "duly elected" representatives in the legislature choose to undertake such actions that violate constitutional rights of anyone in the society. Legislature also has to realize that it cannot exert influence over the workings of the court and selection of its personnel since it is a party to many disputes between citizens and their representatives that the judiciary has to resolve. The involvement of other branches of government in workings of the court should be as limited as is possible. In instances where any rule is deemed unsuitable constitution also delineates the process of amending the constitution.
The judiciary in Pakistan has come a long way from the tentative rhetoric of the 1960s or the fearful judgments of the late 1970s. The refusal of the chief justice to resign on command of a military general is an attempt by the court to assert its rightful authority and is an indication of the change in the attitude of the courts; their preference for transformation rather than transition from arbitrary rule to the rule of law is clear. The fact that this time they could rely on the support from civil society and media was significant. The question of whether or not the recent courageous act by the chief justice is an accident – borne by goodness of one person – or is a consequence of the conscious realization of the courts' power outside the government remains to be explored. But there should be no doubt that it is a courageous act after all. It is therefore, imperative on the citizens to help courts to regain their rightful authority. Yes, there is no denying that the judiciary decided to act within the confines of space provided to them by the other political actors rather than actively agitating for change. But they do deserve a sympathetic nod here and there from all of us. Not only did we burden the courts with the sins that were committed elsewhere, we also failed to understand their difficult position in being able to solve those problems.
Moments of reconstitution do not come very often in nations' histories. Pakistani nation is lucky that the moment came for us despite the over-bearing superstructure of the state that has existed for decades. If the courts fail to gain their authority after a consistent agitation of more than a year, they will become even more subservient to the other branches of government having realized that public pressure does not amount to changing the scope of the government after all. The only fear is not that we will lose this opportunity and that this moment may not come again but instead the bigger apprehension is that defeat today will mean that the probability of anyone opting to agitate for change in the future will be reduced significantly.
(Concluded)
The writer is a doctoral candidate at George Mason University in the US. Email: ghaziaslam@gmail.com
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ISSN 1563-9479 
