Who Will Guard the Guards?

Mr. Syed Ali Zafar, advocate for the Supreme Court, has an excellent column in today’s Daily Times about the proper role of the judiciary in a democracy in which he eloquently argues that the Supreme Court needs to excersize restraint and respect the difficult position of the executive branch of government in order to ensure that the process works correctly and does not upend the government altogether.

What the courts must remember is that executive decisions are never easy. In a democracy, the government in power, which is answerable to the people, is to decide issues based on many conflicting factors. No court in Pakistan is equipped or able to undertake this gigantic task

Montesquieu, father of theory of separation of powers reminds us that all state institutions —parliament, executive and judiciary — must act strictly within their own respective domains and if any one of these pillars encroaches upon the role of the other, “it will be the end of liberty.” When the executive attacked the judiciary’s independence by removing judges, people revolted and had they not been restored, democracy would have been derailed. The judiciary is now thankfully powerful, but the danger is that “absolute power corrupts absolutely.” While the Supreme Court has taken cognizance of matters that are of critical importance as well as popular (e.g. NRO or scrutiny of loan defaulters), there is, now more than ever, equally a duty cast upon it to act with self-restraint and not to exercise any jurisdiction over matters of policy and governance, otherwise the government and the party in power will ultimately be unable to take it lying down. The inevitable clash will not only create disharmony and discord in society, but tarnish the judiciary’s image. Since political parties are not shy of disputes, the ball is in the judiciary’s court to ward off disputes, which can only be done through “judicial statesmanship”.

Judges are ‘defenders of the constitution’, ‘arbiters of law’, ‘enforcers of fundamental and human rights’ and, above all, ‘upholders of the rule of law’. These are acceptable judicial functions to be guarded fearlessly. However, governance is and should not be the court’s jurisdiction nor can the court tell parliament what laws to make or not to make. Equally, the court cannot direct the government who to appoint at a particular post or who to remove.

In this regard, the US Supreme Court could be a role model. When the forefathers of the US constitution were envisaging the role of an apex court, there was serious opposition to giving powers to an institution that was not democratically elected. The argument which prevailed ultimately was that since the Supreme Court will “neither have power of the sword nor the purse”, it will not be a threat to parliament or the executive. This proved to be true for some time because initially it became difficult to find a willing jurist to act as the Chief Justice (CJ)!

All this, however, changed when CJ Marshall’s Supreme Court in the famous case of Marbury vs Medicine laid down the foundations of judicial review, which establishes the court’s power to declare illegal any law or action that contravenes the constitution. The US was fortunate to have judges of high intelligence whose knowledge and farsightedness built the court’s formidable reputation and earned worldwide reverence. One reason for this was that these judges have been very careful in laying down precise principles that all the functions that belong to the legislature or executive are not justiciable. It is the respect of the American public that has guaranteed that the judiciary in the US, even without the “power of sword or purse”, is able to wield unquestionable authority over other institutions.

Pakistan’s Supreme Court too has been careful in ensuring that in exercise of the power of judicial review, it does not upset the delicate balance of power between different state organs. However, what is happening in Pakistan today is a unique situation. All governments appear to be doing nothing for the people’s welfare. Unfortunately, the politicians make big promises during elections but forgot them as soon as governments are formed. But if we want democracy, then the only option available to us is to remove incompetent governments in the next elections. However, people are impatient and the judiciary, which has become strong in the meantime, is under great public pressure to take up those issues that the government is not addressing. The danger in this situation is that the judges, instead of waiting for the democratic process to cleanse the system, may get carried away by popular sentiment and start taking upon themselves the delivery of politicians’ unfulfilled promises.

What the courts must remember is that executive decisions are never easy. In a democracy, the government in power, which is answerable to the people, is to decide issues based on many conflicting factors, including availability of limited funds and resources, economic and social goals, views of all stakeholders and experts and a host of other considerations like political, national and international interests. No court in Pakistan, in fact anywhere in the world, is equipped or able to undertake this gigantic task. With due respect, what does a judge know about economics or fiscal policies? He may wear the law on his sleeve, but cannot be expected to be an expert on matters other than law and this is the basic practical reason why judges the world over do not undertake legislative or executive functions.

Democracy is rule by the majority. Jurisprudentially speaking, therefore, unelected judges, with the best of intentions, cannot ignore this and decide what they think is the best decision on issues of governance and policy. No judge under Pakistan’s constitution has any right to substitute his decision for that of the government, however unpopular the government’s decision may be, unless the government contravenes the law. Any judge deciding a matter purely on the basis of public opinion is usurping government’s functions and violating the constitution.

The Supreme Court is being criticised by many for taking decisions on matters of policy. The sugar case is perhaps the most apt example. One is entitled to ask what business does the Lahore High Court have in fixing prices of sugar? Whether or not to fix prices, and what the price should be, are decisions for the government in power to take. Yet, ignoring this, a Division bench of LHC headed by its Chief Justice on the basis of press reports and no doubt with the popular notion that sugar should be provided to the poor at affordable prices, passed a judgment that sugar is to be sold at Rs 40 per kg. It has been pointed out by the Competition Commission that this order upset the free market system and sugar simply vanished from the market. Most of it was picked up by big commercial consumers like the cola companies, biscuits and sweet manufacturers, who consume 70 percent of sugar. Any other sugar stocks were released by retailers only to those who could afford to pay more. The result was that the real poor consumers could not get any sugar. At the same time, many sugar mills suffered losses with disastrous effects on sugarcane growers and negative impact upon government’s strategy of encouraging local sugarcane production in the future, as the growers would shift production to other, more lucrative crops. The court clearly fell in error as it could not be expected to be aware of all these intricacies. This is the reason why courts, however powerful and however good their intentions, are not supposed to delve into policy matters.

I am happy that the CJ of Pakistan has publicly stated that it is not for courts to substitute the executive’s decisions. However, what is alarming to me is the further caveat attributed to some judges and eminent lawyers that the judiciary is being forced to step in because the government is not doing its job. If true, this is a most dangerous concept. Irrespective of government’s failure, it is not for the courts to “fill gaps”. It is for the people to change governments through the next election if the governments are failing in their obligations. We all remember that martial laws have been imposed in Pakistan on the pretext that government is ineffective. Similar statements by the army that they took over to fill the va
cuum have now been treated by the Supreme Court as amounting to constitutional usurpation. I believe that courts too, like the rest of us, must let the government do its job (or lack of it) and have faith in the democratic process to bring about change. 

What is very necessary and urgent in these trying circumstances facing the nation is for the judiciary itself to exercise “self-restraint”. The judges of the Supreme Court are sitting at the judicial summit where their decisions are not subject to appeal and have far-reaching consequences. They need to keep reminding themselves that they are “We are not final because we are infallible, but we are infallible only because we are final.”. If judges lose sight of this, the country will be forced to ask, “Who will guard the guards?”

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