Athar Osama July 14th, 2007
By: Athar Osama
Recent discussions on various fora (e.g. here) on judicial independence and assertiveness sheds light on a very interesting–and important–aspect of the current judicial crisis in Pakistan. What are the limits of Judicial assertiveness? This is not something new to the world–or even to Pakistan’s history. Every country that has attempted to establish rule of law and constitution has struggled with trying to find a balance between what can (and cannot) a judge do.
In America, where constitutionalism is much more advanced than in Pakistan, the debate has moved to a higher plane in the famous tussle between those who believe in strictly interpretting the constitution and those that only appear to do so. Each side claims that it is interpretting the constitution (or interpretting the original intent of the framers) and accuses the other of legislating from the bench.
We, in Pakistan, have been merely struggling with how to keep the rule of law and constitution alive in our country. Is it really the role of the judiciary to enforce a constitution? Can the judiciary do that even in the absence a popular sentiment towards the constitution? In a situation where an Army general takes over power in an illegal coup, abrogates the constitution and declares martial law, and nobody–but a few “professional” politicians in a nation of 150 million–even makes a sound of protest, what does upholding the constitution really mean? Does that nation even have a constitution to begin with? or is it merely a paper, worthy of celebrating when it suits a few and disposing off when it doesnt?