Constitutional Fidelity or Turf War? The Promise and Pitfalls of Judicial Activism in Pakistan

The South Asia Initiative at Harvard recently hosted a panel discussion on constitutionalism in Pakistan. Speakers included, Justice Khalil-ur-Rehman Ramday, Supreme Court of Pakistan, Osama Siddique, SJD Candidate, Harvard Law School
Beena Sarwar, Senior Journalist, Jang Group Pakistan & Fellow, Ash Center for Democratic Governance at HKS and was moderated by Noah Feldman, Bemis Professor of International Law, Harvard Law School

"As Pakistan awakens from a decade-long military rule, the nation finds itself in the grasp of political turmoil, economic challenges, weak democratic institutions and the menace of terrorism. But while these factors pose a serious threat for the nascent democracy in Pakistan, there are signs of hope for the believers as a resurgent Supreme Court, with support from the legal fraternity, is leading the way towards constitutional adherence and rule of law in the country. However, several voices of ‘liberal’ dissent argue that so long as religion plays a predominant role in Pakistan’s legal paradigm, there shall be a recurrent disposition to interpret and apply the law as an instrument of extremist religious ideology, and in the process shackle the progressive and liberal growth of democracy.This event will provide a forum for leading experts from Pakistan’s judiciary and the legal fraternity to engage in a constructive debate about the current state of constitutionalism in the country, as well as the role that religion plays in Pakistani laws. Through this forum, we hope to facilitate dialogue that fosters a better understanding of challenges confronting Pakistan’s legal landscape and a discussion that generates ideas on the best way forward."

The discussion can be viewed online here

Judicial Activism and the Bar

Asma Jahangir's election as the first woman President of the the Supreme Court Bar Association of Pakistan today continues to complicate the changing frontiers of judiciary/executive confrontation in Pakistan. The election was hotly contested with Jahangir scoring a narrow victory over Ahmad Awas by 38 votes.

While Asma Jahangir's credentials as a lawyer, human rights campaigner and public intellectual are impeccable, the election was also viewed as the playing out of two different but interlinked political movements. Some have viewed this as a conflict over over liberalism, with her opponent being as close to the religious right factions of the bar. Others, including her opponent have tried to present this as a debate over judicial activism. They have argued that Jahangir is the proxy government candidate, who hope that her victory will help them reign in Chief Justice Chaudhary and the Supreme Court. Jahangir had participated in the protest over the dismissal of Justice Chaudhary but had oft late urged judicial restrain and asked the court and the bar to restore neutrality. Commentators have deplored the politicization of elections to a professional association. This politicization and sustained media interest is not surprising.

Scholars of comparative law are only recently drawing the linkages between the bar and judicial activism. Terry Halliday, Lucien Karpik and Malcom Feeley have emperically established a connection between independent legal profession and the existence of social and political liberalism. They argue that an independent bar, even staffed with the most conservative lawyers, will come to the defence of basic political and civil liberties in a repressive regime.

I have come across very little research on the politics of the Indian bar, and would be grateful if I could be directed to any. I was also curious if the readers, most of whom have greater familiarity with daily legal practice, would agree with this formulation. Do Indian bar associations take up questions of judicial behavior or independence?

Pakistan's Judicial Restructuring

Despite Pakistan's troubled history of executive-judiciary relations and frequent attempts by the executive to pack or sack the judiciary, public opinion seems to be wary of granting the judiciary greater powers over its composition. In a recent editorial, The Dawn
takes on Nawaz Sharif's suggestion that the Chief Justice and the judiciary comprise a majority of members of a proposed Judicial Appointments Commission.

As they argue, "A hermetically sealed judicial institution of that sort is antithetical to the principles of democracy. Why should the present membership of a state institution determine what its future membership will be? Remember that judges are free to vote with their conscience once sworn in because it is virtually impossible to remove them before they retire (which is how it should be). What Pakistan needs is a judiciary free from interference, not a judiciary that is independent in the sense of deciding its own membership"


I am curious as to what prompts this critique, which was not so prominently made in the early days when the Indian Supreme Court gradually assumed powers of appointment. It could be driven by a sense of unease with the present incumbent, or from having experienced the folly of insulating one branch of government from checks and balances.