Illustration: Jayachandran/Mint
Illustration: Jayachandran/Mint

The costly failure of the South Asian judiciary

Problems of institutional design mean that it has failed to function as an anchor of stability in most countries in the region

It is widely recognized that judicial independence is an important prerequisite in the making of a successful democracy. India is rather fortunate on this count. Beyond the brief period of Emergency (1975-77), the independence of the judiciary has largely not been under suspicion. This is a great, even if often understated, achievement of India’s journey as a nation state in the last 70 years. But the report cards of the neighbouring countries in South Asia don’t look as good.

The recent developments in three of them are of particular concern. In Pakistan, the Supreme Court recently disqualified Nawaz Sharif from holding any public office, leading to his resignation from the post of prime minister. This has meant that no Pakistani prime minister has yet been able to complete a full tenure in office. The conduct of the judges, the composition of the investigation team and the most trivial of all charges that was found to implicate Sharif confirmed that his disqualification was not the judiciary’s decision alone. At some level, the Pakistani army was involved.

This instance is an addition to the unfortunate precedent in 2012 when then prime minister Yousaf Raza Gilani was disqualified by the Supreme Court on charges of contempt of court. In this way, the Pakistan army may have found a compliant judiciary as the new tool to cut democratically elected prime ministers down to size. While the judiciary in Pakistan finds itself in the middle of the civil-military duel, the Supreme Court in Nepal is stuck in a tug of war between the ruling and opposition coalitions.

Just weeks before her retirement, the first woman chief justice of the Nepalese Supreme Court, Sushila Karki, found herself close to being impeached when the members of the ruling coalition moved a motion to that effect. The step was heavily criticized as an attack on the judiciary by international organizations like the International Commission of Jurists (ICJ) and Human Rights Watch. The impeachment motion could not go ahead largely because opposition parties threw their weight behind her and did not allow Parliament to function.

The role of Karki was not above board either. She was accused of having her favourites not just among the political parties but also among the judges, who were allotted cases accordingly. The root of the problem lies in the role of political parties in the appointment of judges in Nepal. The judiciary is packed with cadres of political parties, which does not bode well for judicial independence and the separation of the judiciary from the legislature.

The situation is perhaps most grim in the tiny island country of the Maldives. With an allegedly selective interpretation of the anti-defection law, the judiciary in the Maldives has stifled the efforts of the Maldives United Opposition to impeach the speaker of the Parliament. Not many give any credence to the judiciary in the Maldives, for it has gone along with the government in suppressing dissent, convicting opposition leaders without allowing them free and fair trials and harassing important constitutional authorities like the Election Commission. The judiciary and President Abdulla Yameen’s government have come under sharp criticism from, among others, the ICJ, South Asians for Human Rights, and the Commonwealth. Maldives finally decided to quit the Commonwealth over what it claimed was unfair and unjust scrutiny “in the name of democracy promotion".

To some extent, the problems in these countries can be explained: Pakistan, Nepal and the Maldives are all fledgling democracies. The institutions of a multi-party democracy have not taken root in any of them. And this process takes time (though one can argue that time has not been a constraint, especially for Pakistan, which has had 70 years to establish these institutions). But the role of the judiciary is perhaps more important than most other institutions. While other institutions undergo their respective gestation periods, the judiciary can provide an anchor of stability in nascent democracies.

Often, the problem is with the institutional design. The key factors in developing a robust judiciary are a) separation from the executive and the legislature, b) appointment of judges on the basis of merit, c) provision of a term of service which cannot be arbitrarily curtailed, and d) making the removal of judges difficult through procedures which involve a high majority in the elected legislature. Even older, established democracies haven’t found an absolutely clean formula so far. The UK, for instance, which has had some role for a separate judiciary since the 12th century, has taken some steps to strengthen the separation of the judiciary from the legislature only in the first decade of this century. While India has been the beacon in South Asia, the executive and the judiciary did clash after a majority government elected for the first time in three decades desired to clip the wings of the judiciary, which had undertaken a massive expansion of its own role in the preceding decades through some creative interpretation of the Constitution.

The problems in Pakistan, Nepal and the Maldives are, however, of an entirely different order. And it is difficult to see democracy flourishing in these countries without getting the judiciary in order. With other institutional factors not favourable, the members of the judiciary in these countries have to begin by understanding their crucial roles and showing some spine.

Has India’s judiciary fulfilled its institutional role successfully? Tell us at views@livemint.com

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