The Final Arbiter

The Final Arbiter

The Supreme Court recently dismissed the review petitions filed by Mr Nawaz Sharif and others, preferred against the judgment of July 28, 2017. As we await the detailed Order, the issue of counter-majoritarianism difficulty merits comment here. Moreso, because the ousted Prime Minister and Ms Maryam Nawaz have called the Panama case verdict as a betrayal of the trust that millions had reposed in Prime Minister: an elected office. Ergo, the Supreme Court has transgressed by undermining the separation of powers. Really? Has the elite panel of five esteemed jurists simply imposed its views on the public will? And what is the significance of the recent NA-120 by-elections result?

Every time this non-elected entity, “intervenes” in matters of “public importance” to secure entrenched “fundamental rights”, it ensues a debate on judiciary’s valid role in democracy. The premise being: just when and to what extent can the courts in constitutional jurisdiction act? This ongoing debate is not new and is most certainly not unique to Pakistan. In a case of Obergefell (2015), that extended the right of marriage to same-sex couples in the US, Justice Scalia in his passionate dissent penned: “Today’s decree says that my ruler, and the ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme”. It will resurface again when in the next term the US Supreme Court takes on the issue of ‘travel ban’.”

Historically, the case of Marbury v Madison created a judicial review of both executive and legislative branches and continues to be cited as an authority for it – not just in the US but in various other countries with a written constitution. “It is emphatically the province and duty of the Judicial Department to say what the law is”, wrote Chief Justice John Marshal. He justified the power of judicial review (not expressly provided in the US Constitution) by writing that in a written constitution the notion that the Constitution is the paramount law of the land is inherent. Laws enacted by the legislature are therefore binding only insofar as they comport with the Constitution.

The US Constitution, remember, was not just responding to experiences of the colonial British rule but also to Articles of Confederation that envisaged a loose collection of 13 sovereign states with no centralist government. Back then, it was thought Congress would be the most powerful of all organs of government. Hamilton, arguing in the Federalist papers, believed that judiciary was going to be the least dangerous branch. That, of course, changed with Marbury v. Madison. The judiciary today, not just in the US, but also in Pakistan where the power of judicial review is expressly vested in our superior courts, is arguably the most powerful of the three branches.

While in the political arena, this may be open to debate, but for students of constitutional law, the premier’s disqualification has been a legitimate exercise of judicial power and our Supreme Court is empowered to speak on matters such as these. The superior courts only punt when the matter presents recognized limits on the judicial authority to act such as standing, ripeness, mootness and political question, etc. These are procedural, statutory and judicially created limits for the courts to decline jurisdiction. Once this procedural Rubicon is crossed, the courts then address the issues on merits, as has been done during the course of Panama Case. In addition, our Supreme Court is not just a court of law but a court of justice (Art. 187). Framers realized that while laws of the land may provide for certain procedural cobwebs, it must not offset the highest court from dispensing complete justice in exceptional circumstances. The question then becomes, must a Supreme Court act with restraint and condone hubris? Worse still naked lies? Or must the courts have one yardstick for ordinary citizens and another for those who hold high public offices? And must we begrudge judiciary for enforcing the letter of law that the Parliament collectively validated and even jealously guarded during the passage of 18^th Amendment?

The recent result of the by-elections, regardless of how the pundits spin it, does not alter the constitutionally defined role of our superior courts. The superior courts of the country are under a sworn commitment to enforce all constitutional provisions including disqualification of members of Parliament spelled out in Article 63. A commitment, entrusted to the judiciary, by the people of Pakistan. Our Constitution embodies the will of the people and it seeks to “establish an order”, where “independence of the judiciary” must be fully “secured” [as reflected in the Preamble], enabling the superior courts to enforce all such provisions of law. When a member of Parliament (or Prime Minister), lies on oath and conceals his or her assets, he or she breaches the trust reposed in him or her. This is when the superior courts, and courts alone, must do a balancing exercise in larger public interest, to not just act but also determine the scope of such a judicial act.

When courts exercise restraint in matters involving the most powerful, it diminishes the institution. This, in turn, weakens democracy because public accountability is pivotal to stable democracy and not a threat to it. In the state’s formal structural paraphernalia, only the judiciary acts as a final arbiter! It prevails over all other players because the people have willed it. And that is the ethos of our social contract!

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.