‘Judges rule on the basis of law, not public opinion.’ This is a famous quote of the former Chief Justice of the United States, Warren E. Burger, who served in this capacity from 1969 till 1986.
This position on the role of judges was taken as a maxim across the world. However, in the last decade or so, things seemed to have gone the other way, at least in some countries, including Pakistan. Now one often hears terms such as ‘judicial populism,’ driven by those known as an ‘activist judges.’ This is yet another term that has been frequently heard, perhaps now more than before.
fNevertheless, there is enough evidence to suggest that the term ‘judicial populism,’ is a current coinage. The term ‘judicial activism’ is much older. American attorney Keenan D. Kmiec in an essay for the October 2004 issue of the California Law Review wrote that the first time the term ‘judicial activism’ was used was by the American historian Arthur M. Schlesinger Jr. in 1947.
But since Schlesinger was a staunch liberal and supporter of the Democratic Party, one can conclude he was using it to criticise the American Supreme Court judges who had overturned the many unprecedented policies outlined by President Franklin D. Roosevelt to address the economic depression in the US in the 1930s.
Ever since the 1950s, there have been at least seven well-known cases in the US which experts have described as judicial activism. But, even though some of these judgments – especially to do with civil rights issues – have been hailed as bold and timely, as a whole, law experts have largely frowned upon the idea of judicial activism.
Black’s Law Dictionary, one of the most used law dictionaries in the US, explains judicial activism as a decision-making process whereby judges allow their personal views about public policy to guide their decisions. Judicial activism can also intrude in the workings of the executive and legislative branches of the government and disturb democratic order.
But there are also those, such as the American Professor of Law Brian Z. Tamanaha who, in Beyond the Formalist-Realist Divide, noted that an absolutely objective interpretation of law is impossible and, therefore, a judge’s personality and/or views are bound to influence his judgments.
Take the case of former Islamabad High Court judge Shaukat Aziz Siddiqui. Even though he was dismissed from his position for accusing the country’s intelligence agencies of meddling in the affairs of the judiciary, he had already made headlines due to some controversial verdicts of his.
According to Werneck, courts have traditionally been targets of populists who criticise them for being elitist and bureaucratic. To counter this, especially in an era of rampant populism, courts have begun to preserve their authority by adjusting their decisions according to public opinion trends
In 2017, he proposed drastic censorship measures to weed out ‘blasphemous content’ from the Internet, and directed that cases be registered against their publishers. In Pakistan, blasphemy laws contain the death penalty. In 2018, he passed an order saying it must be mandatory to declare one’s faith to be allowed to join the army, judiciary or civil services. The order was directed at those who, he said, may use the name of Islam to hide their real identity i.e. Ahmadi.
He also ruled that Valentine’s Day celebrations should be banned because they were ‘against our culture and faith.’ This order saw police round up hundreds of poor men and women trying to eke out a living by selling pink and red balloons and roses on the streets. The famous human rights activist and lawyer late Asma Jahangir once advised Siddiqui to run a madrassa instead of a court!
Siddiqui had obtained a law degree in 1988 from Punjab University where, as a student, he was close to the IJT, the student-wing of the Jamat-e-Islami (JI). The IJT was in the forefront during the 1974 anti-Ahmadiyya movement. It was also infamous on various campuses for disrupting cultural activities that it deemed ‘un-Islamic.’ After graduation, Siddiqui joined the JI as an activist and contested the 2002 election on the party’s ticket. He lost.
Clearly, many of his judgements as a high court judge were influenced by his personal political, religious and cultural views that were shaped by his former association with an Islamist outfit.
Judicial activism, instead of aiding the judiciary, has broken away and sprinted towards populism. Nine years ago, Pakistani academic and author Mohammad Waseem warned that judicial activism in Pakistan was transforming into ‘judicial populism.’ He wrote this in an essay for the 2012 edition of the Journal of Contemporary South Asia, when Iftikhar Chaudhry was the country’s Chief Justice (CJP). Chaudhry had been put back in this position in 2008 by a ‘lawyers’ movement’ against Gen Pervez Musharraf’s regime that had ousted Choudhry on charges of ‘corruption.’
On Chaudhry’s style of judging, Dr Waseem wrote that, ‘the confrontation between the executive and judiciary under him led to speculation about the imminent collapse of the democratic system. The use of judicial review by Chaudhry was widely criticised as an attempt to encroach on the territory of the legislature. The Supreme Court’s pursuit of public interest litigation through frequent suo motu actions taken in a populist mode, led to brinkmanship on the part of the judiciary. However, the Court’s pursuit of judicial reform relating to speedy justice and accountability of the higher judiciary remained far from satisfactory.’
According to the SOAS University of London’s Dr Yasser Kureshi, ‘a populist judge embraces a more aggressive form of judicial activism, prioritising not only policy over precedent, but also outcomes over processes. The populist judge is unbound by precedent and procedure, interpreting away any constitutional limitations on what the judge can and cannot do.’
Justice Shaukat Siddiqui had obtained a law degree in 1988 from Punjab University where, as a student, he was close to the IJT, the student-wing of the Jamat-e-Islami
Indeed, a lot has been written on judicial populism in Pakistan since the return of Iftikhar Chaudhry. Saqib Nisar who was CJP from December 2016 till January 2019 was also described by many as a populist judge. In May 2020, when the current CJP, Justice Gulzar Ahmad, ordered the Sindh government to allow the opening of shopping malls in Karachi — when the number of Covid-19 infections were on the rise — critics of the decision explained it as a populist and even ill-informed judgement. There was a steep increase in Covid-19 cases a month after the malls were ordered open.
But is judicial populism squarely a Pakistani phenomenon? Not quite. A similar decision was delivered by the Supreme Court of the US State of Wisconsin. The US had the highest number of Covid-19 cases and deaths. So, it was understandable to see how this decision was roundly criticised.
The Supreme Courts of Israel and Brazil are also seen as dealing in judicial populism. In May 2017, Brazilian Professor of Law Diego Werneck published an insightful essay, exploring why judicial activism mutates and becomes judicial populism.
According to Werneck, courts have traditionally been targets of populists who criticise them for being elitist and bureaucratic. To counter this, especially in an era of rampant populism, courts have begun to preserve their authority by adjusting their decisions according to public opinion trends. For example, by adopting populist vocabulary, the courts now claim to represent and vindicate majoritarian sentiments against those perceived as ‘corrupt elites.’
To Werneck, this can be triggered by general discontent or a protest movement. He gave the example of the mass 2015 protests in Brazil, during which its Supreme Court judges and some trial judges did not hold back in castigating ‘corrupt politicians’ and, in the process, gained significant personal popularity. So much so that the wife of a popular trial judge even set up a Facebook page for his ‘fans’.
This scenario is remarkably similar to how the higher judiciary evolved in Pakistan after the 2007 lawyers’ movement and, again, after the 2014 protests (dharna) held by Imran Khan’s PTI. Both episodes saw judges use increasingly populist rhetoric and delivering a series of controversial verdicts which mirrored the sentiments being aired by some equally populist media outlets.
In 2019, the Supreme Court of ‘secular India’ allowed Hindu nationalists to build a temple on the grounds of a 16th century mosque. The judges agreed with the nationalists that it was the original birthplace of the Hindu deity Ram. So, in a way, a secular apex court of a constitutionally secular country agreed that, indeed, a deity (Ram) was born at the site of the mosque and that it was built over a temple marking the birth of the deity. Secular sense suggests that religious beliefs are entirely subjective because most of them are ahistorical (lacking historical perspective or context). In other words, since they are matters of belief, they can neither be proven nor refuted.
This is why superior courts, even in partially secular countries, often avoid taking up cases of theological nature. If they do, then they do so only if a contemporary act associated with it is treated as a crime by the law. But largely, there was really nothing secular about the law through which the Indian Supreme Court gave its verdict. One can conclude that the apex court was influenced by the ascending Hindu nationalist sentiment in India.
According to Dr Waseem, when elected representatives clash in weak democracies such as Pakistan, non-elected state institutions are invited by both to mediate. In the past, the military used to be that sole mediator, despite the fact that it often ended up getting rid of both the bickering parties.
Ever since the time of Iftikhar Chaudhry, the judiciary too has been approached by politicians to settle scores against opponents. But, the more this happens, the more space the executive and the legislative lose, because the judiciary now believes it represents the people’s will and interests more than the politicians. This is a recipe for all kinds of institutional disasters.