Who is watching the watchers?

Now that the judiciary ‘crisis’ has settled down and the TV progamme directors are scrambling to invent find the next ‘crisis’ to increase their advertising sales, one question remains: If the judiciary is watching the government, who is watching the watchers?

Munir Attaullah asks some questions that have not been talked about in his column in today’s Daily Times.  These thoughts bear close consideration if any good is to come out of this latest episode of political drama.

We are all well aware of the story – at least as it has been presented in the popular media – so I will spare you a retelling. But let’s look at Munir’s take on the new power that the judiciary has seized for itself:

I am no spokesperson for the government, nor am I privy to its thinking. But I have a lot of sympathy for the view of Prime Minister Gilani, expressed publicly but always obliquely, of the need for institutions not to encroach upon the traditional territory of others. Discreet as the prime minister may be, no one should doubt where the finger is pointed. The problem is as follows: an independent SC is now an effective check on executive excess and its attempted constitutional transgressions. But what are the checks on possible constitutional transgressions by the SC?

Effectively, none. For, the SC is the final arbiter on the constitution. So its pronouncements and actions — by definition — can never be, no matter what, legally violative of the constitution.

If the Supreme Court can truly never be legally violative of the constitution, does the constitution even apply to it? Is the Supreme Court now, essentially, above the law? What are the responsiblities of such a body? Munir says,

Such unbridled power brings with it the awesome responsibility to always act sagaciously if the institution is to retain the respect and confidence of the whole nation. At all costs the SC must avoid becoming controversial, or even appearing to be so. It is not for nothing that a policy of judicial self-restraint is universally viewed as the key ingredient for the maintaining of such public confidence.

There is an honourable place for suo motu cognisance, and for the questioning — even the directing — of high functionaries of state, by the courts. But where, in doing so you are, on the face of it, stepping into what is normally the territory of others, the guiding principle should be ‘if in the slightest doubt, do not’.

But these are famous last words, I’m afraid. Sir John Dalberg-Acton famously wrote in 1887 that “Power tends to corrupt, and absolute power corrupts absolutely.” Should we not be worried about giving the SC unbridled and unchecked power? How can anything good possibly come from this?

As I said, if the superior judiciary chooses to take upon itself to decide what the price of sugar or petroleum products should be, or whether bureaucratic appointments, promotions, or transfers by the prime minister are in order, or gives direct orders to officials rather than act through their political masters, or insist some officials be sacked, it is impossible by definition for anyone to say it is acting unconstitutionally. But a political government is not that foolish not to know what is really happening in such cases: under the guise of the popular slogan of ‘providing justice to the people’, it is high politics in the wider sense.

And so it is that the government, knowing it cannot fight its battle on the turf of legality, will be forced to fight it on the battlefield of politics. In particular, a policy of incrementally making the SC politicised and controversial is very much an option (and is not the SC by its actions unwittingly aiding in this endeavour?).

Now that the SC has put itself into the political fray, Mr. Munir sees a new fight on the horizon as the government tries to rein in the judiciary’s power and impose some limits on their ability to act above the law. The question, then, is whether or not we can avoid some new political drama by putting some controls on the Supreme Court’s power before it gets to that point. Now, I am not so bold as to present the answer here myself. Actually, this is something that we need to work out as a country.

So, what do you think?