Ever since the election of US President Barack Obama, the Republicans have tried every conceivable method to stymie the president’s legislative agenda. Unable to repeal his signature health care programme, they were hoping the right wing majority in the Supreme Court would do their dirty work for them. In a victory for common sense, however, the court upheld the Affordable Care Act on the grounds that its controversial individual mandate constituted a tax and so fell under the purview of the federal legislature. Even Bush-appointee Chief Justice John Roberts joined the liberal justices in the majority opinion. Washington may be broken but it is heartening to see that even a divided Supreme Court can uphold the legislative and executive branches’ authority to democratically enact its agenda.
The timing of this landmark decision draws inevitable comparisons with our own Supreme Court. Justices in Pakistan have been extremely activist since their restoration, having their say on matters like electricity prices, which are normally left to the legislature. And then, of course, there was the recent decision to disqualify Yousaf Raza Gilani for contempt. Our judges have shown a lot of eagerness to quote scripture, poetry and cases from other countries in their verdicts. They would do well to study the majority opinion in the Affordable Care Act to see what the proper role of the judiciary is meant to be. Some would say that the Supreme Court is a lot closer to the PML-N than the PPP, both because of ideology and the fact that the former party was more closely involved with the lawyers’ movement. This bias has been evident in many of the verdicts it has passed since its restoration in 2008.
At the same time, it is possible to be a bit too harsh on our Supreme Court. They are trying to reverse decades of precedent where the Court was subservient to whoever happened to be in power. And while our Supreme Court may have removed a prime minister, it was just over a decade ago that the US justices inserted a president into power in a judgment that was blatantly political. Pakistan’s Supreme Court may have a long way to go but hopefully it will eventually be able to balance its independence with respect for the democratic process.
Published in The Express Tribune, June 30th, 2012.
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