Autocratic legalism

.. by Asad Ul Mulk

The judiciary may lack the physical power to restrain an entrenched executive, but it possesses an important form of authority: the ability to deny legitimacy to actions that violate constitutional limits. Governments, even authoritarian ones, seek legal and institutional legitimacy to sustain public acceptance and maintain control.

The concept of “autocratic legalism” describes how rulers can use laws and constitutional mechanisms to weaken democratic institutions while maintaining the appearance of legality. This may begin with political control of the legislature, followed by amendments to laws and constitutions, manipulation of judicial appointments, and the creation of parallel or extraordinary courts. Once courts are captured, the system of checks and balances is weakened.

The process can extend to independent constitutional bodies, prosecutors, bureaucracies and the media. Political opponents may then face legal pressure, while dissenting voices are restricted through ostensibly lawful procedures.

Pakistan’s history provides an important example. In the State v Dosso (1958) case, the judiciary’s acceptance of the first military coup effectively provided legal legitimacy to an unconstitutional takeover. Although judicial resistance might not have physically stopped the usurpers, a contrary judgment could have denied them the legitimacy they sought.

The article argues that judicial independence therefore involves more than issuing enforceable orders. At times, judges may have to pronounce constitutional principles even when enforcement is uncertain, accepting personal institutional consequences rather than legitimising unlawful exercises of power.

For Pakistan, proposed changes involving judicial structures, constitutional amendments, extraordinary courts and electoral laws therefore warrant careful scrutiny for their impact on judicial independence and institutional checks and balances.
The writer is a practising barrister.  .. Source