Judiciary as Custodian of Global Modernity Under ‘Good Governance’: Steering the Juridico-Bureaucratic Structure (2000-2006)
A simple electronic search on the main Pakistan law site of the words ‘good governance’ nicely illustrates how the judiciary adopted the World Bank’s good governance paradigm.
The phrase ‘good governance’ appears in one case in 1996, and once again in 1998. As soon as Musharraf announced ‘good governance’ for the country and the Asian Development Bank efforts to loans for good governance in Pakistan started, the use of this word increases, to five cases in 2000, and five, six, eight and nine in 2002, 2003, 2004 and 2005, respectively. This was a period of close alliance between the judiciary with Musharraf. In the disputed years of 2006, 2007 and 2008, the number of cases including the phrase of good governance is three, three and two, respectively. When again in 2009, 2010 and 2011, the judiciary turned up as the sole custodian of good governance in Pakistan, the phrase was referred to five, eight and sixteen times, respectively. The details of these cases can further illustrate the nature of the role of the judiciary in adopting the good governance discourse.Whereas Musharraf was getting legitimacy around good governance, the courts were also harping on the chorus of “democracy, good governance [and] economic stability” and also ensuring that the judiciary is independent as a prerequisite of it.[1224] The judiciary agreed with the corruption campaign against the politicians for the sake of good governance.[1225] When Musharrafbegan his decentralization plan to limit the powers of the bureaucracy, the judiciary claimed it stood with good governance as an idiom for “upright, honest and strong bureaucracy”.[1226] Cases were launched that reflected on local governance and decentralization as package of good governance.[1227] We can see “settled principles of good governance” injudicial decisions.[1228] Good governance adopted the form of a ‘doctrine’ for equality of justice, welfare of the people and to reduce income and earning inequality by the judiciary.[1229]
Over time, the judiciary’s domain of ‘good governance’ expanded and started encompassing issues such as the norms of transparency,[1230] health education,[1231] allocation of welfare funds and schemes.[1232] The judiciary also opined as to the future likelihood of good governance.[1233] For Supreme Court Chief Justice Nazim Hussain Siddiqui, “good governance is a key to progress, development and ultimate prosperity”.[1234] Furthermore, for him, the “rule of law is the most important thing”.[1235] For Supreme Court Chief Justice Iftikhar, “institutions are the units of the system of governance”, which indicate the strength or weakness of any polity.[1236] Rule of law as an ‘essential component’ of good governance[1237] became “the rule of good governance”, until 2008.[1238]
After Musharraf, it seems that the judiciary alone was the initiator and custodian of good governance.
It actively intervened in different state departments in regards to transfers, appointment, promotion and benefits.[1239] As the judiciary emerged from the struggle to uphold the rule of law through the lawyers’ movement it strongly asserted its rule of law stance to steer the good governance of the country.[1240] The judiciary stood for overarching good governance, even in 2008, when the elected government was in power. The range of the judiciary’s good governance interference expanded not only in number, but also in scope. For example, the judiciary took a stand against discretionary powers “without application of mind”[1241] by the bureaucracy, and it also intervened in issues relating to institution building,[1242] how institutions operated,[1243] hiring and firing in institutions,[1244] completion of government-contracted projects, policy matters,[1245] delegated legislation,[1246] tort law,[1247] police,[1248] law and order and security,[1249] confidence of investors,[1250] and not to mention fundamental rights.[1251] For the judiciary, good governance was the demand of the day.[1252]The interesting aspect of all these cases is that governance is promoted quite apart from planning with its sequencing and pacing in political and economic development, but good for all times. Good governance is uncritically accepted and disconnected with social and economic issues, as well as the overall state and society. Other options to advance political and economic development are absent from the judiciary’s concerns.
The rule of law was sine qua non for good governance and economic progress of a country,[1253] and there is no need to emphasize that the same trajectory too course in the U.S. Just a cursory glance at the books in Pakistan’s Federal Judicial Academy reveals that most texts focus either on the U.S.
legal system or Islamic law. As a member of the World Trade Organization, each and every sphere of law in Pakistan were amended, repealed and/or enacted in these years.[1254] These laws affected local industry and agriculture significantly, but there is no legal analysis of them. Instead, there is only rhetoric emphasizing these laws were necessary for market economy under the World Trade Organization legal regime and World Bank Good Governance.The height of this thrust of the internationalization of laws can be seen in the resolutions taken up at the International Jurists conference held in Pakistan in 2006. It was emphasized there that developing countries should follow the international commitments of Intellectual Property-IP laws as they are in the interest of the nation.[1255] Similarly, there was significant stress on adopting the Rules of Arbitration of the International chambers of commerce to get foreign investment.[1256] Alternative Dispute Resolution (ADR) was the main component of the judicial reforms and the assurance was given that the “necessary legal framework for Alternative Dispute Resolution-ADR in Pakistan is laid down”.[1257] Until 2006, jurists were clear that ADR was a necessary evolution from commercial litigation, without being tied to any juristic philosophy.[1258] International environmental standards, even market-led ones, such as the International Standard Organization—ISO certification, were seen as positive, as was child labour certification, which refused goods from Pakistan produced by child labour.[1259] An international human rights discourse was adopted, accepted and acknowledged by national courts very quickly.[1260] Given the largely unregulated market economy, consumer protection and related legislation was requested from the state.[1261]
Laws, the rule of law, and the role of the judiciary, according to the judiciary in Pakistan, were seen as a ‘qualified human good’ as opposed to E.P. Thompson’s, ‘unqualified human good’.[1262] Yet, it has to be observed that foreign funds poured in from the Asian Development Bank to allow these developments and a Federal Judicial Academy to oversee judicial reforms was established.[1263] There was so much money for judicial reforms, that either funds were underutilized,[1264] or they were forced onto Pakistan, and were then denied by then Minister of Law, Justice and Human Rights, Shahida Jamil.[1265] Is it not interesting that the judiciary was asking for financial independence from the executive, but that judicial reforms were a project of financial dependence on International Financial Institutions.
One commentator criticized the judicial reforms loans on the grounds that a loan cannot be used to start a programme, only to maintain a programme.[1266] A study by Osama Siddique published in 2013 analyzed in detail the law reforms of 2000s as an alien concept of justice but one that attracted disparate champions like the Supreme Court Chief Justice, U.S. aid and the Taliban. I want to add liberals to this group of admirers. The speedy justice in the above pursuits, for Siddique, showed a “remarkable obliviousness to the historical, institutional and sociological factors that alienate Pakistanis from their formal legal system”.[1267]A further point worth remembering is that during the 2000s, while the demand of de-linking with U.S. was popular due to drone attacks,[1268] the connection of the rule of law and legal projects is always presented as apolitical. There is no footnote even, except when raised by the Supreme Court Chief Justice, in the form of a “global, systematic, military, diplomatic and financial strategy” to deal with ter- rorism.[1269] Gradually, concepts from the “good governance paradigm” entered judgments of the superior courts, as explained above.
5.5.1 Public Interest Litigation Until 2006: A Comfortable Substitute for Democracy
It was inevitable that the Public Interest Litigation tool in the arsenal was also altered to suit global needs. The future of the world was impossible unless Human Rights were guaranteed and recognized at the national, regional and international levels.[1270] Public Interest Litigation represented a new era of judicial culture where courts gave substantive justice and acted as a “catalyst for socio-economic change”.[1271] Judicial activism and empowerment transformed Public Interest Litigation into a ‘silent revolution’[1272] or a social engineering project.[1273]
The legislature was the continuous target of Public Interest Litigation supporters, and an easy target, as the legislature was manned by feudal forces.[1274] Thejudiciary was to provide social justice.[1275] The job of ‘salvaging democracy’ was on the shoulders of the judiciary.[1276] Public Interest Litigation represented the “democratization of access to justice”.[1277] For Ahmad Rafay Alam, Public Interest Litigation was nurturing a ‘stable democracy’.[1278] It was seen as a democratic tool as most petitions were against the state which meant that the litigation was a forum for a debate.
The denial of writ petitions on technical grounds meant denial of the democratic forum provided by Public Interest Litigation. Furthermore, the increase in Public Interest Litigation cases was seen as an indication that citizens needed an outlet. “In our burgeoning democratic environment, elections alone may be too little and too far apart”, Alam explained. His genuine worry was that Public Interest Litigation and the judiciary should not be the only democratic forum, so he suggested a Public Interest Litigation filter that could be a ‘democratic alternative’[1279] much like the constitution provides a filter of ‘alternative remedy’ in writ jurisdiction. “In any event, it would be against the nature of the Public Interest Litigation jurisdiction to strictly enforce such protocols”, he argued.[1280]Wasim Sajjad, Chairman of the Senate, expressed his concerns and suggested that the role of the court could be suggestive as far as social changes are con- cerned.[1281] Supreme Court Justice, Nasir Aslam Zahid, while appreciating Public Interest Litigation warned that the judiciary should not take over the functions of the legislature or the executive.[1282] Hamid Khan came forward in its favour and argued there was a need for a very strong judiciary to face down the government.[1283]
The above connection took its shape under Supreme Court Chief Justice Iftikhar. He took very popular steps against the land mafia to provide the public with basic needs, such as parks.[1284] Iftikhar first followed General Musharraf and decided cases in his favour, but later he used Public Interest Litigation to fix prices against pharmaceuticals and oil and gas companies. According to the claim of the Supreme Court Chief Justice himself, Public Interest Litigation provided speedy and inexpensive access to justice for the common man.[1285] A further exhibition of such a ‘pro-people’ approach was the banning of wasteful expenditures on marriage functions, because it led to frustration, anger and hostility among the poor.[1286] So not the wealth, but its exhibition was the main issue in this thinking.
5.5.2 2006: The Judiciary's Own Consciousness of Its Linear Development and Weaknesses in Leading Global Modernity
On the other hand, around 2006, the judiciary was also aware of its weaknesses. It felt that it was now at the ‘Final Frontier’.[1287] Khoosa identified the developments in the judiciary in its historical trajectory. The first stage was the cognitive stage, where the need was to identify the constitutional hindrances. From this, the Judges' case arose accordingly.[1288] The second stage came when the judiciary consolidated its gain, thus the consolidation stage. The third stage was the Public Interest Litigation stage, that is, the judiciary focused on how to deliver this gain to the public. For him, the final frontier was the stage in which to protect the judiciary from threats within the judiciary itself, including personalities, peer pressure and the concentration of power in the hands of the judicial heads.[1289] Ijaz Ahmad, Justice of the Supreme Court, also spoke of removing personal prejudices, which cannot be controlled by regulations or laws. External independence meant freedom from the control of the executive.[1290] These were not calls for judicial restraint,[1291] and could only be translated as a call for the judiciary to act in an insular manner, like the military and bureaucracy. That is why, when the lawyers movement was criticized about the Chief Justice’s judicial activism, this criticism was not understood by the lawyers.[1292]
5.6