Judicial imperialism? Babar Sattar

Judicial imperialism? Babar Sattar

The constitution is supreme. But the constitution is what the judges say it is. We have had direct military rule. We have seen a troika keeping democracy in check. We have had Article 58(2)(b) used by presidents to sack elected governments on khaki prodding, with the Supreme Court playing the underwriter. Since 2009, we have evolved a jurisprudence that makes the judiciary omnipotent, granting it a veto over all executive and legislative acts. The triumph of unelected institutions over the representative ones is now complete.

Some of us believe Nawaz Sharif is evil incarnate and any means employed to banish him into obscurity are legitimate. This lot cheers on the SC to delve deeper into the political thicket and produce partisan consequences. Then there are those who profess unqualified loyalty to NS. For them too, all is fair in love and war. It doesn’t matter how foul the PML-N’s strategy is, so long as NS gets back in the ring. Caught in the crossfire are those struggling to decipher the principles and norms that are guiding the conduct of institutions in this rudderless polity.

We are in a free-for-all ‘do good’ state of frenzy. After 70 years of existence, we still have no consensus on our foundational organising principles. Scratch the surface and our commitment to democracy or rule of law is inexistent. There is no separation of powers or delineation of roles. Power and responsibility don’t go hand-in-hand. Everyone is interested in everything other than his own job.

We are in the age of judicial rule. It started with the restoration of Iftikhar Chaudhry and his projection as the messiah representing the aspirations of the ‘silent’ majority. (Many of us who lionised former CJ Chaudhry at one point or another are now ashamed of being unable to see the harm that judicial overreach, driven by a populist rhetoric, is doing to the polity). CJ Chaudhry used suo motu to transgress into the domain of the executive in the name of judicial review. Back then, our present CJP was a staunch critic of the unguided exercise of suo motu.

If at all there existed any limits to the reach and scope of Article 184(3), they are now invisible. With some creativity, almost everything can be a matter of public importance related to fundamental rights. We have seen the CJP touring hospitals, inspecting their operations and issuing instructions. Where does he derive the authority to do so? Is it provided in the constitution or a statute or the SC Rules or is it a product of judicial convention? What was once a quintessential executive function has been subsumed in the SC’s on-the-go judicial review powers.

Under Iftikhar Chaudhry, the SC heard challenges to the 18th Amendment. It didn’t like the ability of parliament to have a say in judicial appointments. So for the first time in history, we saw a constitutional amendment sent back to parliament, with instructions to reconsider it in view of the SC’s desires. Parliament cowered and gave the SC most of what it wanted. It retained some ability to block a nomination (with bipartisan support) and ask the judicial commission for a new nominee. When it exercised such authority, the SC set it aside in exercise of its judicial review power.

The story didn’t end there. After the APS attack, the country was aghast and blamed the courts for the lack of convictions and for being soft on terror. This no-confidence motion against the judiciary resulted in the 21st Amendment and the emergence of military courts. Here, it was the military intruding into the judiciary’s domain. The SC swallowed that bitter pill. But while holding that secret trials in military courts are in accord with fundamental rights, it gave itself the power to strike down constitutional amendments. So the debate over parliament’s supremacy must end now.

The SC has interpreted the directive in Article 239(5) – “no amendment of the constitution shall be called in question in any court on any ground whatsoever” – to mean that the SC has a veto over amendments and will decide which are kosher and which aren’t. Once the SC arrogates to itself the power to second-guess the desirability of constitutional amendments in the name of interpretation, the lesser function of exercising veto over ordinary legislation for being in conflict with the constitutional text (or spirit) remains hardly comment-worthy.

Beyond legislation, parliament is vested with the authority to elect the PM. It was previously understood that the constitution mandates the Election Commission to determine the qualification/disqualification of a member of parliament before an election and of the speaker/chairman of the Senate post-election. Panama changed that. The SC held that disqualification under the law was different from disqualification under the constitution and the SC, in exercise of its 184(3) powers, could disqualify a member without trial after forming a tentative view that he was liable to be disqualified under articles 62 and 63.

This interpretation of the constitution has given the SC the ability to determine who is qualified to head the executive. So, for example, the SC just decided not to entertain a petition challenging the LNG contract in exercise of its 184(3) powers. If it had chosen to hear the matter, reaching the conclusion that the contract had not been awarded in a transparent manner and forming the subsequent tentative view that PM Abbasi can’t be regarded as ‘sadiq and ameen’ would be within the realm of possibilities. Crudely put, PMs now serve at SC’s pleasure.

When a PM can be chucked out without trial in exercise of the SC’s discretionary 184(3) jurisdiction, the ouster of heads of statutory organisations for being appointed in breach of due process or for lacking requisite is a routine affair.

So, theoretically, we have a system where citizens elect representatives and delegate to them the authority to legislate and run the state (on behalf of citizens), with judges vested with the authority to check the illegal actions of such representatives without second-guessing the policy choices they make. In practice, judges have interpreted the constitution to mean that they have the power to veto the choices parliament makes – including legislative choices – and the power determine who is fit to be PM, and also the power to second-guess the choices the executive makes in appointing people during its term that it finds appropriate for executive jobs. Of course, no one can justify nepotism in appointments. But the problem of regulating discretion in making appointments is underlined by the equally thorny questions surrounding judicial appointments.

Since 2009, we’ve seen an SC (with brief periods of exception) that has produced jurisprudence that isn’t always guided by precedent; curtailed the scope of fundamental rights; used contempt powers to silence critics; and produced legal uncertainty instead of exercising its adjudicatory function such that the law speaks with one discernible voice.

Let’s consider the short order in Election Act case. Eleven judges in the Benazir Bhutto case (PLD 1988 SC 416) reiterated the ruling in the Abdul Wali Khan case that the right to form a political party “guaranteed under Article 17(2) is subject only to reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan. It excludes all other constraints. This restrictive clause is exhaustive and has to be strictly construed”. But the SC, in the name of interpretation, has just rewritten Article 17(2) along with Section 203 of the Election Act.

While summarising the rules of statutory interpretation, the CJP held in ‘Imrana Tiwana’ (2015 SCMR 1739) that, “there is a presumption in favour of constitutionality and a law must not be declared unconstitutional unless the statute is placed next to the constitution and no way can be found in reconciling the two”. It also stated that “the court will not declare a statute unconstitutional on the ground that it violates the spirit of the constitution unless it also violates the letter of the constitution”. But in the Election Act case, Article 2A’s spirit and amorphous notions of morality have overturned the express text of the constitution and the act.

In his dissenting judgment in the 21st Amendment case (PLD 2015 SC 401), the CJP was emphatic when he said that it is not the SC’s business to make decisions on parliament’s behalf that the latter opted not to make. In the Election Act case, parliament deliberately removed a disqualification introduced by Musharraf in relation to a party head. But when opposition parties lost in parliament and brought the matter to court, the three-member bench headed by the CJP inscribed articles 62 and 63 disqualifications into the law, thereby extending judicial control over the internal working of political parties.

Our democracy might not have been tamed as yet, but it sure is controlled.

The writer is a lawyer based in Islamabad.

Email: sattar@post.harvard.edu

The News 24 Feb. 18