Adnan Falak
Describing the nature of government and its relationship with the governed, the father of the US Constitution and fourth American President, James Madison, wrote in Federalist #51: "What is the government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. In framing a government, which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in next place oblige it to control itself."
Today, many developing countries are facing the dilemma enunciated by Madison. Governments established to serve people have mutated into unaccountable, inefficient, corrupt, and abusive monoliths failing to control those who wear the crown. Polities, where the executive and the legislature have failed to deliver, and hold corruption in check, there the judiciary has stepped in the realm of politics and public policy to uphold the rule of law.
In Pakistan, power is now seen as a shortcut to instant riches and state office is conceived as a conduit for personal gains. Power holders have used authority to perpetuate their rule, fill their offshore accounts by draining state coffers, abuse laws, mismanage institutions and trample civil liberties. The ethical standards of our rulers can be discerned from the fact that scandal after scandal has struck current government, but instead of accountability, infringers have been protected or worst elevated. In this situation, it is imperative for the judiciary to expand its role and act as guardians and trustees of society.
Apart from Pakistan, Italy, Mexico, Argentina and Israel are some countries where the judiciary has used its powers to improve governance. In Italy, judicial intervention acted as a catalyst for political reforms, flushing out corrupt elements and cleansing the system. During early 1990s, under operation Mani pulite (clean hands in Italian), a judicial investigation revealed widespread corruption, leading to disbarment of many political parties, forcing corrupt public figures to withdraw from politics, ending the era of so-called First Republic and radically transforming the country’s political landscape.
In some countries, the judiciary has filled the void created by democratic deficit. There is a widespread perception in Mexico and Argentina that public-policy reflects technocratic assessment, rather than popular choices. This has encouraged people to take legal recourse using courts as a forum for public policy decisions.
Commenting on democratic deficit and the role of judiciary, Catalina Smulovitz, Professor of Political Science at the University Torcuato Di Tella in Buenos Aires, stated: “In the face of democratic deficit of representative government, the law and invocation of the law through judicial institutions can become an instrument of civil society empowerment.”
When it comes to the review of administrative actions and accountability of state functionaries, the Israeli Supreme Court is no less activist. In the words of Justice Aharon Barak, former President of Supreme Court of Israel: “There is no legal vacuum, in which actions are taken without the law having anything to say about them. The fact that an issue is strictly political does not change the fact that such an issue is also a legal issue.”
In Pakistan, many politicians are blurting that every state organ should function within its jurisdiction, knowingly ignoring the fact that courts have resorted to activism because our political process has failed to deliver and provide a fair deal to the people. If executive and legislative branches of government uphold the rule of law and do what they are elected to do, perhaps, then we may expect all the state institutions to work in concord and harmony.

n    The writer is a freelance columnist and has worked as a broadcast journalist.
    Email: adnanfalak@gmail.com