Judicial power play
The writer is a lawyer, formerly practising and teaching law in Lahore, and currently based in Singapore. He holds an LLM from New York University where he was a Hauser Global Scholar. He tweets @HNiaziii
When the sun sets on revolutionary uprisings, how the victors use their newfound power leaves a permanent imprint on the future.
Do they allow limitations to be saddled onto themselves; sacrificing power to uphold the ideal of the rule of law? Or do they seize upon their popularity to expand their authority in new directions?
The lawyers’ movement uprooted a dictatorship, but left behind a judicial structure which, while independent, was also activist in way that was unprecedented in Pakistan’s history. The Chaudhry Court, as it became known, often stepped into the shoes of the executive to give decisions on national policy, muddying the line between the executive and the judiciary through a long list of court decisions.
Judicial activism became the hallmark of Pakistan’s judiciary. The Chief Justice of Pakistan not only had the final say on which policy was best, but could also create new policy through the exercise of unfettered suo motu powers. There were some exceptions to this: Justice Nasirul Mulk, Justice Jillani, and Justice Khosa. But they were unable to leave the lasting mark of judicial restraint on an institution that had grown increasingly populist with time. Chief Justice Saqib Nisar’s leadership has swung the pendulum towards activism with such force that it will take judicial horologists years to bring balance back to it.
This period has resulted in the Supreme Court taking up a host of policy initiatives of its own volition. From dams to healthcare. Meanwhile, in the country’s High Courts there appears to be a trend amongst the legal fraternity to attempt to get their favourite policy position implemented across the country by petitioning the courts through public interest petitions, allowing even courts that have no suo motu power to get a chance to play federal or provincial minister.
I must caveat all of this by saying that this foray into policymaking may in fact be undertaken with good intentions. Judges and lawyers may genuinely believe they are doing something for the good of the country. But as they say, the road to hell is paved with good intentions.
From a constitutional perspective, the judiciary has no business making policy. The Constitution treats fundamental rights and principles of policy differently. The former can be enforced and implemented by courts; the latter are aspirational goals left to executive discretion — the executive is not bound to implement them. The purpose of the Constitution’s principles of policy is to speak broadly about the type of democracy we want to have. It is up to the democratic process to get us there.
Ironically, there are plenty of judgments of the Supreme Court which direct that the judiciary should avoid getting into questions of state policy. These judgments are promptly forgotten about when a headline-grabbing policy issue presents itself to the courts.
To get around its own precedent, the judiciary and lawyers resort to interpreting fundamental rights so broadly that they end with a meaning that allows the judiciary to do anything it wants. A perfect example of this is the right to life. This right was famously used by Chief Justice Saqib Nisar to justify his project of fixing Pakistan’s water woes. Because of a quagmire of paradoxical decisions, it is now woefully unclear what exactly the right to life means.
When the judiciary makes policy, it violates the constitutional principle of the separation of powers. That is a pretty big idea to throw aside. Without it, you get an institution of government wielding a disproportionate amount of power. All the more worrying when that institution is staffed by unelected individuals who are not representative of the general population.
Being unelected is a plus when you are merely interpreting the law. It insulates you from having to make popular decisions, rather than the right decisions. Not so much when you are making law or policy. Crafting policy requires numerous compromises and negotiations in order to work, making the legislative and executive arms of the state best suited for the task. The judicial process is ill-suited for this because it is adversarial in nature. Its approach is not one of compromise, but of all or nothing decisions. It cannot take into account the nuances that go into making policy such as how best to allocate limited state resources, the most efficient economic model to pursue, or the best way to supervise policy implementation.
The democratic deficit within the judiciary also makes it unaccountable if it ends up making bad policy. The only institution that can hold the judiciary to account is the Judicial Commission of Pakistan i.e. judiciary itself. You cannot vote out judges if they end up making the wrong policy choices. You can vote out parliamentarians though. It is also unfair on the voters who elected a particular political party on the basis of their policy positions only to have it supplanted by the judiciary.
Judges also have zero expertise on policy matters. For example, recently a petition was filed in the Lahore High Court asking that the teaching of the Quran be made mandatory across all schools in the country. The merits of this proposal aside, designing an educational curriculum is a policy decision that requires input from a plethora of educational experts, teachers, parents, scholars. Educational policy needs careful deliberations, negotiations, and state-wide consensus building. It is a not a zero-sum game. The judiciary is not equipped to answer these questions, nor should it. But instead of throwing this petition out on the first day of hearing, it is being heard by the High Court.
We have to ask: why does the judiciary keep getting into these questions? The answer seems to lie in the popularity it has attained and the headlines it has generated. We have reached the unenviable milestone of creating a populist judiciary.
The greatest loss in this policymaking adventure is to the millions (yes, millions) of cases rotting away in the judicial hierarchy because they don’t hold the same appeal as building a dam. That doesn’t mean they aren’t just as important. The judiciary must take it upon itself to regulate the powers of the Chief Justice to take suo motu notice on policy matters. It must also confine public interest petitions to concrete questions of civil and political rights.
The judiciary cannot abdicate the job it is supposed to do for the job it wants.
Published in The Express Tribune, December 15th, 2020.
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