The populist impulse of Pakistan’s Supreme Court has been critiqued and compared with the technical approach of the US judicial system by analysts. The predicate for this cross-comparison is that the US was the first nation to develop a written constitutional democracy with courts that can exercise judicial review, which can serve as a comparative marker for newly emerging judicial bodies. However, the contrapositive comparison is hardly ever made; i.e., what can the US learn from emerging judicial branches, like that of Pakistan?
After reviewing the cases decided by both Supreme Courts over the last few years, it seems that Pakistan’s apex Court has delivered more to the average citizen by way of environmental, worker and voting rights than the US Court, which has limited these rights for the benefit of corporations and big business.
The first area where the Pakistani and American judiciaries differ is in the recognition of environmental rights. In Pakistan, the courts have been proactive with environmental petitions. Ahmad Rafay Alam explained that in the Lahore Canal Road Case, the Supreme Court took suo-motu notice of the city traffic authorities’ plan to widen Canal Road. The Court recognised that an adverse environmental effect from the project would amount to a violation of citizens’ fundamental right to life and a healthy environment. This stands in stark contrast to the way in which the American Supreme Court has recently sided with corporate interests when deciding cases concerning environmental rights. Over its last term, Ian Millhiser of ThinkProgress explains that the American Supreme Court has “erected new obstacles to environmental organisations challenging federal environmental policy; and it upheld a mining company’s plans to dump literally millions of tonnes of mining waste into a pristine lake”. Americans enjoy more environmental protections overall than Pakistani citizens due to the more established nature of environmental safety in the US. However, one sees an opposing impulse between Pakistan and the US Supreme Courts to take future action against environmental degradation.
The Pakistani courts’ populist impulse has also provided access to justice for working class citizens. Pakistani courts have taken action to enforce minimum wage payment, protect union rights, investigate the Baldia Town factory fire and scrutinise wages for journalists. The majority of current US justices, on the other hand, have been protecting the interests of corporations by creating technicalities that limit a worker’s ability to sue its employer. In one case, the Court all but eliminated an employee’s right to sue his or her employer for retaliatory firing based on prior discrimination claims by that employee. In essence, this judgment will allow companies to terminate employees, who report being discriminated against, which will increase discrimination in the workplace. The Court also recognised that an employer can stop an employee from accessing the judicial system by requiring the employee to exclusively arbitrate any complaint against them, denying them the right to bring their complaint before a judge.
When looking to voting rights, Pakistan’s Supreme Court has taken an expansive approach, recommending that voting be made mandatory for all eligible citizens, as well as pushing for allowing overseas Pakistanis the right to vote. In prior eras, the US Supreme Court adopted the same approach, but the current bench has taken a more limited view. Conservative political parties have attempted to disenfranchise minority voters, due to their liberal voting patterns. Rather than taking action to stop such undemocratic behaviour, the US Supreme Court ruled that sections of the law criminalising voter discrimination were invalid.
Judges like Chief Justice John Roberts of the US Supreme Court are held up as paragons of judicial knowledge due to their ability to understand and explain complex legal technicalities. But knowledge without wisdom can result in injustice, or rather, lawyerly-ness does not always result in fairness. The Pakistani Supreme Court has adopted an expansive role in providing access to justice for all levels of society. Their actions may be preferable to the pro-business attitude of the current US Supreme Court, which has restricted the enjoyment of fundamental rights for average citizens based on legal technicalities.
Published in The Express Tribune, July 12th, 2013.
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