Judge Dread: The Perils Of Judicial Populism

Judge Dread: The Perils Of Judicial Populism
Eleven years ago, the Pakistani political scientist and author Dr. Mohammad Waseem more-than-alluded that ‘judicial populism’ was becoming a serious issue in Pakistan. He explored this in an essay for the 2012 edition of the Journal of Contemporary South Asia.

Dr Waseem was writing when Chaudhry Iftikhar was the country’s Chief Justice (CJP), brought back to this position by a ‘lawyers’ movement’ against Gen Pervez Musharraf’s regime that had ousted the judge on charges of corruption.

On the returned judge’s style, Dr Waseem wrote: “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 him 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.”

Judicial populism did not wither away after Chaudhry Iftikhar’s retirement in 2013. In fact, it deepened, especially during Justice Saqib Nasir’s tenure as CJP (2016-2019). This is when Dr. Yasser Kureshi delved deeper to articulate the meaning of judicial populism. In an article for Dawn, he wrote: “The 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.”

The current CJP Umar Ata Bandial is increasingly being referred to as a populist judge. Dr. Yasser understands judicial populism as “an aggressive form of judicial activism.” Does this mean that, even though, judicial activism and judicial populism belong to the same branch of judicial mutations, judicial activism is somewhat more acceptable and less damaging? And what is Justice Bandial, really?
According to Bernstein and Staszewski, judicial populist rhetoric, though replete with invocations of the people, masses, nation, etc., is not a way to actually give power to the populace

Iftikhar Chaudhry

“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. Burger served in this capacity from 1969 till 1986. This position on the role of judges is taken as a maxim by judges in various countries.

In none of the two books by Justice Burger that I read, did he even once mention anything about judicial activism or judicial populism. There is thus enough evidence to suggest that, at least, ‘judicial populism’ is a current coinage. However, the term ‘judicial activism’ is much older, but it was not used as frequently as it is being now. The 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.

Schlesinger profiled all nine US Supreme Court justices at that time and explained the alliances and divisions among them. The article characterised Justices Black, Douglas, Murphy, and Rutledge as the ‘Judicial Activists’ and Justices Frankfurter, Jackson, and Burton as the 'Champions of Self Restraint.' Justice Reed and Chief Justice Vinson comprised a ‘middle group.’

In his essay, Kmiec gives five core meanings of judicial activism: 1) invalidation of the arguably constitutional actions of other branches; 2) failure to adhere to precedent; 3) judicial legislation; 4) departures from accepted interpretive methodology; and 5) result-oriented judging. Critics of Justice Bandial have accused him of all five. So is he indulging in judicial activism then? And if Chaudhry Iftikhar and Saqib Nisar (or for that matter, Justice Gulzar Ahmad) were judicial populists, how were they different from Justice Bandial?

Chief Justice Umar Ata Bandial

I ask this because some judicial scholars, such as Stetling Harwood in his 1996 book Judicial Activism: A Restrained Defence, have maintained that judicial activism is not always a bad thing. In the US, ever since the 1950s, there have been at least seven well-known cases which experts have described as being influenced by judicial activism. But, even though some of these judgments have been hailed as bold and timely, the idea of judicial activism has largely been criticised by scholars of law and by many sitting governments.

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. Other critics have claimed that it intrudes in the workings of the executive and legislative branches of the government and disturbs democratic order.

But there are also those, such as the American Professor of Law Brian Z. Tamanaha who, in Beyond the Formalist-Realist Divide: The Role of Politics in Judging, notes that an absolutely objective interpretation of law is impossible and, therefore, a judge’s personality and/or views are bound to influence his judgments.
Iftikhar and Nisar were judicial populists. Bandial is a judicial activist

The debate around the idea of judicial activism is now decades-old. But many commentators are of the view that judicial activism has broken loose and hurled itself towards populism. Anya Bernstein and Glen Staszewski in their 2021 essay for the Minnesota Law Review explain judicial populism as judicial rhetoric which is similar to the one used by political populists. Populists apply binary rhetoric, explaining life as a conflict between good and evil, the common folk and an elite, etc. Populists are often anti-pluralist. They claim that they, and they alone, represent the people (Jan-Warner Müller, What is Populism?). Populists also demonise their opponents, often explaining them as enemies, traitors, evil and entirely corrupt.

According to Bernstein and Staszewski, like the rhetoric of political populism, judicial populist rhetoric too paints a world riven by fundamental, irresolvable conflict between a pure people and a devious elite. In 2003, Justice Scalia, an Associate Judge of the US Supreme Court, in his dissenting note against a majority judgement which proclaimed that banning same-sex marriage was against the constitution, raged against the judgement by stating that it was the view of a cosmopolitan elite and not mainstream America. He used populist rhetoric to make his point.

Judge Antonin Scalia

In 2017, former Justice of the Islamabad High Court Shaukat Aziz Siddiqui readily took up a petition to ban Valentine’s Day celebrations in Pakistan. He ruled that it was ‘un-Islamic’ to celebrate it. Police was then ordered to take action against those caught celebrating it. But the resultant action saw the arrests of poor men, women and children selling flowers on roads. The famous lawyer late Asma Jahangir was livid. She told reporters that Justice Siddiqui should be running a madrasah rather than a court.

Before this, the same judge had thundered against what he believed was ‘blasphemous’ content on websites. While asking the government to remove it, he bewailed that he was reduced to tears after reading what he saw. One can conclude that judicial populism’s aim is to also attract attention and create a sort of cult of personality around a judge. In 2012, on the journalist Hamid Mir’s talk-show Capital Talk, the lawyer Ali Ahmad Kurd complained that most senior judges were delivering judgements so that they could remain in the headlines. Kurd was mostly alluding to Chaudhry Iftikhar. Ironically, Kurd had played an active role in aiding Chaudhry’s return as CJP.

According to Bernstein and Staszewski, judicial populist rhetoric, though replete with invocations of the people, masses, nation, etc., is not a way to actually give power to the populace. Ignoring democracy’s inherent pluralism, it gives judges a way to claim universal support for their conclusions.

Judicial populism can also be an expression of populist trends. This means that these trends can influence the courts’ decisions in order to show empathy toward the public or a populist. Recently, some Supreme Court and High Court judges in Pakistan have often stated that Imran Khan is a very popular politician.

The perception of his popularity is largely proliferated by Khan’s supporters on social media sites and then emphasised by some pro-Khan TV anchors, especially on their personal YouTube channels. Yet, this perception is readily absorbed by some judges and can be the reason why they are being criticised for treating Khan’s cases laxly. Critics insist these judges fear a dent on their own imagined image and ‘popularity’ if they do not treat Khan the way they do.

In his 2022 essay for the Review of Central and East European Law, Professor of Law Bencze Mátyás wrote that the judiciary is most likely to be influenced by judicial populism in countries with either populist governments or prominent populist players who hog the media.

Chaudhry Iftikhar was the product of a populist movement that forced a dictator to back down, but the movement’s populist currents were carried into the Supreme Court by him. Apart from taking suo motu over ‘crucial’ matters such as prices of potatoes, he also controversially dismissed an elected prime minister.

Justice Chaudhry: product of a populist movement

Saqib Nisar was drawn into a plot by the military-establishment to pave the way for the populist Imran Khan (by declaring him pious and clean) so Khan could become prime minister despite carrying a lot of questionable baggage. Not surprisingly, Nisar then tried to create a cult of personality for himself by launching impractical populist schemes (‘the dam fund’) and ‘raiding’ small courts and terrifying junior judges in front of cameras.

Iftikhar and Nisar were judicial populists. Bandial is a judicial activist. However, as can be seen the manner in which he is trying to preside over a controversial suo motu taken to question the extension of the election date for the Punjab Assembly by the Election Commission of Pakistan, it seems his activism is slipping into becoming populism. Some of his brother judges have begun to publicly criticise his style. Pro-Khan supporters and journalists, however, have already started to describe him as a ‘warrior.’

But is judicial populism squarely a Pakistani phenomenon? Not quite. We have already seen how it emerges in the US. The Supreme Court of Israel and, in the recent past before the ouster of a populist President, courts in Brazil were also seen as dealing in judicial populism.

As Chief Justice, Saqib Nisar wanted to build dams

The Brazilian Professor of Law Diego Werneck published an insightful essay, exploring why judicial activism mutates and becomes judicial populism. The essay appeared on the website of the academic forum Verfassungsblog. According to Werneck, courts have traditionally been targets of populists who criticise them for being elitist and bureaucratic. To counter this, especially during the era of rampant populism and of unabashed populists heading governments in various countries, courts began to preserve their authority by adjusting their decisions to trends in public opinion.

Werneck then adds: "By adopting the populist vocabulary, the courts claim to represent and vindicate current majority sentiment against what are perceived as corrupt politicians."

Werneck writes that 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’ in the media and, in the process, gaining significant popularity.

This encouraged their populist style, 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, then again, after the 2014 protests (dharna) held by Imran Khan’s PTI.

But Dr Waseem added another dimension to this. He wrote that when elected representatives clash in developing countries, 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. Waseem then adds that, ever since the time of Chaudhry Iftikhar, 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 legislature lose, because the judiciary now believes it represents the people’s will and interests more than the politicians.

The writer is a journalist, author, cultural critic, satirist and historian.