Judges as legislators - Babar Sattar - Saturday, March 26, 2011

Source : http://thenews.com.pk/TodaysPrintDetail.aspx?ID=38229&Cat=9

The writer is a lawyer based in Islamabad.

In ‘Blink’ Malcom Gladwell suggests that human beings generally reach decisions intuitively and instantly upon being confronted with the need to reach them and then come up with explanations rationalising their choices. He calls it the “storytelling problem” where we later create stories to explain the decisions we make or actions we take. Reading the recent rulings of the Supreme Court one gets the sinking feeling that Gladwell might be right.

The jurisprudential debate over what judges ought to do in courts has largely subsided across the world. It is now agreed that judges do not declare what the law should be, but only what it is. In other words, judges are not legislators or lawmakers, but adjudicators interpreting the text of the law laid out by legislators and stating what the text means.

When Justice Oliver Wendell Holmes, Jr of the US Supreme Court revealed that, “this is a court of law, young man, not a court of justice,” he wasn’t being facetious. He was reiterating the limited scope of authority that a judge wields in a country that incorporates separation of powers through a written constitution.

But if the rulings of our Supreme Court in Sindh High Court Bar Association vs Federation of Pakistan (challenging the Parliamentary Committee’s disagreement with recommendations of the Judicial Commission regarding appointment of judges) and Shahid Orakzai vs Federation of Pakistan (questioning the legality of Justice Deedar Shah’s appointment as Chairman NAB) are samples to go by, our apex court judges don’t seem to abide by the doctrine of limited judicial authority.

Zardari-led PPP’s disregard for the mandatory consultation process in appointing the NAB Chairman is unjustifiable. And its contempt for the law and court rulings apparent in the re-nomination of Justice Deedar Shah for the same position after the apex court declared his appointment illegal even more abhorrent.

But this is not a conversation about who is better: the Supreme Court or the Zardari-led federal government. It is also not about the applicability of outcomes reached by the Supreme Court. The Supreme Court determines what the law is. In the above cases it has spoken its mind. And until it overrules itself, its words are final and binding. But when it comes to court rulings, what matters more than the instant outcome is judicial reasoning. For such reasoning becomes a precedent, binds subordinate courts and shapes the country’s jurisprudence.

The Supreme Court being “infallible because it is final” has no room to make mistakes. And yet the legal reasoning in these cases is seriously wanting. It is probably unfair to lump Shahid Orakzai (the Chairman NAB case) with Sindh High Court Bar Association (the judicial appointments’ case). The reasoning and outcome of the latter could deform our doctrines of democracy, separation of powers and limited institutional authority (all still in a state of infancy) and is therefore more troublesome.

The main reason leading to the outcome of the Chairman NAB appointment case is largely straightforward and logical, and the consequence of its ruling, fairly limited. But the reasoning in both cases provides a peek into the court’s perception of its seemingly unlimited powers and the ‘do-good’ approach in exercising such powers without restraint.

Let’s get the Chairman NAB case out of the way first. Deedar Shah’s appointment has been declared ultra vires because law required the president to consult with the leader of the opposition before appointing a candidate to the office of Chairman NAB and this mandatory requirement was not meaningfully discharged. This is why Justice Shah’s appointment was illegal. But the court went on to produce other outcomes backed by unconvincing reasons.

The first is the uncharitable manner in which the possibility of Justice Shah’s reappointment has been eliminated. Subtler, but more dangerous, is the insistence of the court that an administrative role for the chief justice in the process of appointing Chairman NAB must be carved out even though there is no statutory or textual basis for the same.

The ruling points out that NAB law allows a chairman to serve only one term and prohibits grant of any extension. It then states that as Deedar Shah has already served as Chairman NAB since November 2010, he is now barred from being reappointed. This is circular reasoning at best. Justice Shah has not been removed for misconduct through use of the legal mechanism provided for ouster of Chairman NAB. (Chairman NAB can only be removed from office through the procedure that applies to a judge of the Supreme Court.) He has actually not been removed at all. The court found that Justice Shah was not a legitimate chairman because he was never appointed legally.

In such case, while holding that Justice Shah’s appointment was ultra vires of the law and invalid, the court should have clarified that his appointment was void ab initio (void right from the start, just the way appointments of PCO judges were held as such).

Now if Justice Shah was never legally appointed as Chairman NAB, how can his work at NAB for a few months under a mistake of fact (that he was a legitimate chairman) be counted as a term in office disabling him from ever being appointed as Chairman NAB? The ruling acknowledges that Justice Shah is without fault (and sympathises with him). So how can he be condemned as ineligible for a position he might legally qualify for when he has done no wrong?

Let us hypothetically assume that the leader of the opposition is meaningfully consulted and agrees to support Justice Shah’s appointment as Chairman NAB. According to the court, he can still not be appointed as such and must personally pay for the mistake of the law ministry that processed his invalid appointment in the first place.

If Justice Shah has a right to be appointed Chairman NAB upon satisfaction of all other legal requirements, how can such right be taken away due to someone else’s fault? Has the Supreme Court just undone ubi jus ibi remedium (‘where there is a right there is a remedy’)? Would the court even have expounded on the legality of Justice Shah’s reappointment had he not been re-nominated before the announcement of the detailed judgment?

The Zardari-PPP decision to reappoint Justice Shah as Chairman NAB was ridiculous. Thus, as a practical matter the court stretching the law to lay this controversy to rest is quite welcome. But principled determination of legal controversies has no room for expediency. We might be sick of the trickery employed by the Zardari regime to run this country down. But does that allow constitutional courts to replace principled reasoning as a basis of the rulings with crafty strategies to pay a devious regime back in the same coin?

And then this business of the chief justice being ‘pater familias’ and the lord and saviour of the pitiful multitudes simply refuses to go away, despite much talk about the need for building institutions. The suggestion incorporated in the NRO case and the Harris Steel case has been repeated in the Chairman NAB appointment case: the chief justice should also be consulted before appointing an individual as Chairman NAB.

Now NAB is an executive agency under the prime minister’s control. Its statute provides that its chairman is to be appointed after consultation between the prime minister and the leader of the opposition; meaning, with bipartisan support. There is absolutely no statutory basis for the chief justice to get involved with the process. And yet our apex court demands such a role. Whence do our judges derive this authority to say what the law ought to be?

(To be concluded)

Email: sattar@post.harvard.edu

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