VIEW: Judicial minimalism —Saroop Ijaz - Tuesday, October 12, 2010

Source : www.dailytimes.com

Judicial minimalism can promote democratic goals, given Pakistan’s constitutional history, by leaving certain things undecided and by allowing opinion to form over time, and by stimulating the processes of democratic deliberation and public discourse

“If it is not necessary to decide more to a case, then in my view it is necessary not to decide more to a case,” said the Chief Justice of the US, John Roberts.

The Supreme Court (SC) and the high courts of Pakistan have been ‘judicially active’ in their endeavour to institute effective checks and balances on the government. The courts, although driven by noble motives, are infringing upon the spheres of the other two branches of the government. The rulings of the courts upon matters belonging to the legislative and public spheres are undermining the credibility of parliament and denying the possibility of evolution to a nascent democracy in Pakistan. The argument used to justify intensive judicial activism has the underlying assumption that parliament and the executive have failed to deliver. Disturbingly, that is the primary argument used periodically for ‘military activism’.

The Lahore High Court (LHC) recently decided to impose a ban on Facebook, YouTube and Google amongst other websites through an interim order since these websites contained blasphemous content. The ban was subsequently lifted, but the case remains pending before the LHC. The ostensibly blasphemous content on these websites generated a public discourse regarding the scope and boundaries of ‘freedom of speech’. But, before the debate could take off, engaging the public and reaching a social consensus, the LHC stepped in. Any debate now would have to be conducted with the possibility of contempt proceedings since it would be commenting on a matter that is sub judice.

Similarly, the SC is hearing the petition challenging the constitutionality of the 18th Amendment to the constitution. The 18th Amendment was passed by parliament unanimously after more than one year of debate inside and outside of parliament. The first legal issue to be decided in the petition was regarding maintainability, i.e. whether the SC had the power to review an amendment made to the constitution. Briefly, the argument for the SC’s power of review of constitutional amendments is that the SC is empowered to review constitutional amendments if they violate the ‘basic structure’ of the constitution. The SC has a long list of cases, with the most recent being Pakistan Lawyers Forum vs Federation of Pakistan (PLD 2005 SC 719), where the court held that it did not have the jurisdiction to strike down a constitutional amendment. I am constrained not to say more as the matter is still pending.

Formalistic legal arguments aside, the core question is not regarding the jurisdiction of the superior courts since, admittedly, it is for the superior courts to decide the ambit of their jurisdiction, or the bona fides of the courts, but rather the effect of extending the sphere of their influence to matters that, prima facie, belong to the public sphere or other branches of the government. The 18th Amendment case is an example of the SC ruling on (and possibly against) the unanimous consensus of the elected representatives of the people.

An example illustrating this point was the suo motu notice taken by LHC’s divisional bench of the high price of sugar in the country. The court fixed the price of sugar at Rs 40 per kilogramme, ignoring the market forces influencing the price. The court’s credentials in economic management are open to debate. Although driven by the best of motives, the outcome was that neither the price nor the supply stabilised, as it was a matter for economists and parliament, not for the courts.

Judicial minimalism, made popular by the eminent American jurist Cass Sunstein, simply put, is the philosophy that argues that judges should concern themselves with adjudicating the particular dispute at hand, and not engage in broad theorising affecting people not party to the dispute. In doing so, the judges promote deliberative democracy, encouraging the political branches and society as a whole to debate upon core issues and arrive at a more sustainable consensus. In an embryonic democracy plagued with a state of ethical and political uncertainty as in Pakistan, the courts may not always have the best or the ultimate answers to all the questions.

Judicial minimalism enhances democratic self-government by allowing public debates to stay in the political realm, rather than the court providing broad, sweeping judgments on controversial issues. The honourable SC had the constitutional power to strike down the NRO (and arguably the 18th Amendment); however, it needs to be mindful of the unintended adverse consequences of its decisions, especially when the area involves a highly contentious question, now receiving sustained democratic attention. In such areas, courts should be cognisant that even relying on their own deepest convictions, they may err, especially when the decisions entails overturning the consensus of the people.

Judicial minimalism can promote democratic goals, given Pakistan’s constitutional history, by leaving certain things undecided and by allowing opinion to form over time, and by stimulating the processes of democratic deliberation and public discourse, and in certain cases by waiting for an actual dispute to come up before the court. The independent and honourable SC has to resist the urge of setting everything right in one or a few cases. Sometimes people will put up with much hardship if they are permitted the freedom to draw their own conclusions, even though the conclusions may be wrong.

Saroop Ijaz is a lawyer based in Lahore and can be reached at saroop_ijaz@hotmail.com