The cost of involving the judiciary for regime change

“There is hardly any political question in the United States that sooner or later does not turn into a judicial question” – Alexis de Tocqueville, "Democracy in America" (1835).

Political transitions have been one of the most problematic problems of any political system. In Pakistan, political transitions have involved the superior judiciary in a prominent role.

Once again, the present government has approached the Supreme Court (SC) through a presidential reference to resolve this current problem of political transition. As the matter is sub judice, it would not be appropriate to debate the merits of these cases, but it is not inappropriate to understand this judicialisation of regime change in its historical context and in terms of the political choices made by the opposing political elites.

Lessons from history: An examination of the judicial history of Pakistan shows that the judicial role in regime change can broadly be divided into two conceptual periods and two historical periods. 

Between 1954 and 2000, the superior judiciary has been called upon to decide on the legitimacy of the regime change which has already occurred or on questions of post-facto legitimisation or de-legitimisation.

Whereas between 2007 and 2018, the superior judiciary has been one of the key instruments of regime change – or that regime change took place also as a result of judicial interventions.

First, in 1954, the Federal Court legitimised the illegal dissolution of the constituent assembly in the Maulvi Tamizuddin Khan case. Second, in 1958, the SC legitimised Ayub Khan’s martial law in the Dosso case. Third, in 1972, the SC post-facto de-legitimised the Yahya Khan martial law of 1969 and legitimised Bhutto’s ascension to power as the civilian martial law administrator in the Asma Jilani case.

Fourth, in 1977, the SC legitimised Ziaul Haq’s martial law of 1977 in the Nusrat Bhutto case. Fifth, between 1988 and 1997, the SC upheld the dissolution of the assemblies under Article 58(2)(b) of the Constitution in a series of cases – except in 1993, when the SC struck down the dissolution order against the Nawaz Sharif government. Sixth, in 2000, the SC legitimised Pervez Musharraf’s martial law of 1999 in the Zafar Ali Shah case.

But after the judicial and lawyers’ movement of 2007, the superior judiciary emerged as a very powerful court and changed its role also as a key instrument of regime change. 

For one, in 2007, the judgment in the Iftikhar Chaudhry restoration case as well the expected judgment in the challenge to Pervez Musharraf’s presidential election led to the fear of regime change resulting in the martial law of November 3, 2007. Second, in 2012, the SC judgment in the contempt proceedings led to regime change by the removal of the then-PM Yousuf Raza Gilani. Third, in 2017, the SC judgment in the Panama Case led to regime change by the removal of former PM Nawaz Sharif.

Tactical victories, strategic failure: As is obvious from the above narration, in the latter cases of regime change in 2012 and 2017, it was those in Opposition who conducted politics through judicial means. What were the consequences? It has led to a major historical and institutional shift in the political process, namely, the judicialisation of regime change.

This judicialisation of regime change may have led to short-term tactical victories of removing opponents from the government but has led to long-term strategic losses for the political class, which is that instead of solving the problem of regime change through negotiations or public mobilisation, the political class has become addicted to law as the ideology of regime change and the judiciary as an instrument of regime change. 

A historical rupture has occurred in politics – that of the shifting of political power from the political elite to the judicial elite, combined with the already entrenched political power of the establishment.

Politicisation of the judiciary: The need for judicial survival or the seduction of power in the first phase of 1954-2000 led to the judiciary being labelled as an "establishment judiciary" and in the second phase of 2007-2018 as being labelled as a "political engineer using the pretext of democratic constitutionalism". Therefore, the role of the judiciary in the judicialisation of regime change has also sadly led to the politicisation of the judiciary.

In Bush vs Gore (2000), which led to George Bush becoming the president of the US, Justice John Paul Stevens pointed out the dangers of politicisation of the SC in the following prophetic words: “Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is pellucidly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law."

In short, politicians’ own failure to solve their political problems leads them to use and abuse the judicial process by trapping the judiciary. Therefore, beware of this trap of politicians, who when losing political power want to cling to political power through judicial means.

Purifying democracy: The SC cannot avoid being part of these issues because such political questions involve constitutional questions, and it becomes unavoidable once parties approach the court. The question is not to avoid but about the judicial approach to be adopted to deal with such issues. In the present presidential reference involving the interpretation of Article 63-A of the Constitution, the government wants to use the SC to "purify democracy" but in actuality wants judicial help to bring back its dissidents by threatening them with disqualification and tainted votes. This is pure and simple politics by judicial means.

A non-politicised judicial approach would be to simply facilitate democracy (and not to purify it) by ensuring the freedom to cast the vote without coercion and ensuring its subsequent counting and leaving aside the rest of the issues for the time being. The political class must be helped to get over their legal addiction of politics by judicial means.

The writer is a practising advocate of the Supreme Court of Pakistan.

Originally published in The News