A Minor Guardian
Is a Constitutional Court, or the Supreme Court in our case, the best institution to protect the rights of minorities in a country?
Reading that sentence, may either cause the reader to pause to take time to consider the notion, or it may lead to an emphatic nod of the head. It is to those who fall into the latter category that this article is addressed. Mostly because if there ever was a ranking of constitutional myths, this one would be somewhere near the top. And as myths go, this one needs to be debunked.
As Professor Sadurski describes the misconception in his book ‘Rights Before Courts’, the argument for minority protection by the judiciary appeals to the non-majoritarian aspect of democracy. The courts are seen as the defenders of the constitution’s rights against the majoritarian power of the legislature and the executive. This majoritarian power has to be constrained, and the judiciary is seen as the institution best suited to this task. This argument has found significant traction in Pakistan, and was often hailed as one justification for the troubling argument for judicial supremacy.
This argument takes too simplistic a view of democracy. Members of Parliament need the votes of minority groups. Furthermore, the argument gives no reason for us to doubt the fact that the electorate, when exercising its vote, will fail to take into account certain ideas of justice or the place of minorities in that scheme. It is too broad a generalization to believe that voters will always take into account their own selfish reasons when voting. As Professor Jeremy Waldron states, ‘People often vote on the basis of what they think is the general good of society. They are concerned about the deficit, or about abortion…in a way that reflects nothing more about their personal interests than that they have a stake in this country.’ Of course, the electorate can have widely different views about the place of minorities in the country, but so will the composition of a Constitutional Court.
Taking the Supreme Court of the United States as an example, it has been divided numerous times over divergent issues regarding minority rights. The upcoming opinion in Fisher v. Texas, which deals with affirmative action in university admissions, is expected to be polarized along ideological lines. Similarly, the Supreme Court of Pakistan was split over the issue in Zaheeruddin v. The State concerning the protection offered to Ahmadis under the Constitution. There is then no reason to suppose the judiciary is more insulated than the legislature regarding these issues, and there is no reason to believe it is better suited than the legislature to protect minorities.
Stephen Griffin, in his work on the United States Constitution, writes: ‘The emphasis on majoritarianism as the fundamental principle of American democracy in the debate over judicial review and the constitutionalist position rests on the assumption that only the Supreme Court can play a credible role in defending constitutional rights. This is clearly not the case.’ Griffin’s work (which is also cited by Sadurski) then showcases how Congress enacted various pieces of legislation dealing with civil rights and liberties in the 1980s in response to court rulings that gave a very restrictive scope to the protection of civil liberties. His conclusion: ‘The [contemporary] debate [about judicial review] accepts the simplistic view that majorities are always interested in violating the rights of minorities. This makes it difficult to explain why Congress is able to produce consistent majorities in favour of civil rights and liberties legislation.’
This argument can be further reinforced by looking at different issues of minority protection and showing how it was the legislature, not the courts, that gave the most adequate solution in protecting minorities. For example, the Supreme Court of the United States would give the decision in Brown v. Board of Education, but true racial equality would be heavily reliant on executive action and the later Voting Rights Act, which introduced novel ways to protect African Americans from being discriminated against with regards to voting. The Voting Rights Act was enacted by Congress in the aftermath of the events at Selma and would prove successful in its effort to safeguard the voting rights of minorities. One of the safeguards of the Voting Rights Act, given in section 5, was actually struck down by the Supreme Court in Shelby County v. Holder.
In Pakistan, taking Article 20’s guarantee of religious freedom as an example, the judiciary has embarrassed itself with decisions like Zaheeruddin and Mujibur Rehman v. Federal Government of Pakistan which denied Ahmadis their rights and liberties under Article 20. The Lahore High Court, in a 1995 judgment, has also blocked members of the Shia sect from taking out the Zuljinnah procession. These examples, and many more, cast doubt on the hypothesis that the judiciary is in any way more able, or qualified, to protect the rights of minorities than the other institutions of government.
It is not just the United States and Pakistan where these counterarguments can be shown to be true. Professor Sadurski argues exhaustively that the same misconception regarding the role of the judiciary can be rebutted by examples from Central and Eastern European countries. There is just no evidence to support the theory that the legislature is in any way less well equipped to protect minorities than the judiciary.
The point that I am making is not that the judiciary never protects minorities, or that the legislature does not pass oppressive laws against them. The point is that to view the judiciary as an isolated guardian of the constitutional rights of minorities is not only a myth, but it also causes the people of Pakistan to suffer from tunnel vision. The protection of minorities requires the legislature, the executive and the judiciary to work in tandem. No one instrumentality of government can be our sole hope for the protection of minorities in Pakistan.
Most important of all, it is the people of Pakistan that must be made to realize that minorities are discriminated and oppressed all around them. They must be made to realize the worth of the protections guaranteed by the Constitution. This again requires all three branches of government working together. And if the branches of government fail to act, we need to vote them out. The true power to protect our minorities lies in our hands, it lies in the democratic will.
As long as we stay silent, no institution, no matter how powerful, can protect the minorities in this country.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.